Editorial Board
Saul Levmore
Directing Editor
William B. Graham Distinguished Service Professor of Law and
Former Dean of the Law School
University of Chicago
Daniel A. Farber
Sho Sato Professor of Law
University of California at Berkeley
Heather K. Gerken
Dean and the Sol & Lillian Goldman Professor of Law
Yale University
Samuel Issacharoff
Bonnie and Richard Reiss Professor of Constitutional Law
New York University
Harold Hongju Koh
Sterling Professor of International Law and
Former Dean of the Law School
Yale University
Thomas W. Merrill
Charles Evans Hughes Professor of Law
Columbia University
Robert L. Rabin
A. Calder Mackay Professor of Law
Stanford University
Hillary A. Sale
Professor of Law and Affiliated Faculty
McDonough School of Business, Georgetown University
University Casebook SerieS ®
Legal Ethics
Eighth edition
Deborah L. Rhode
Ernest W. McFarland Professor of Law
Director, Stanford Center on the Legal Profession
Stanford Law School
David Luban
University Professor
Professor of Law and Philosophy
Georgetown University Law Center
Scott L. Cummings
Robert Henigson Professor of Legal Ethics
Professor of Law
UCLA Law School
Nora Freeman Engstrom
Professor of Law
Deane F. Johnson Faculty Scholar
Stanford Law School
University Casebook SerieS ®
Legal Ethics
Eighth edition
A course on legal ethics is unique in many ways, but the most prominent is its relevance to all areas of practice. Every lawyer, in every practice specialty, confronts issues of professional responsibility and professional role. The daily life of most attorneys involves often undramatic but important ethical choices about relationships with clients, colleagues, adversaries, judges, governmental officials, and “the law.” This book explores how lawyers forge their professional identities. Its analysis proceeds on two levels. The first concerns issues of personal responsibility; attention centers on the innumerable individual choices that define the kind of lawyers we become, as well as the legal standards that justify or challenge those choices. A second set of issues involves collective responsibilities shared by all members of the bar. These issues often implicate broader questions of social justice. Examples include access to legal services, the bar’s regulatory structure, and the impact of ethical standards on the profession and the public.
The “law of lawyering”—the codes of conduct and the other bodies of law governing legal practice—structures but by no means limits our analysis. Lawyers’ professional identities are shaped by a vastly more complex set of values and pressures than those captured in codified rules. For that reason, this textbook takes the law of lawyering as its point of departure but not its only guide. The subject also requires attention to the conditions of practice—to the situational constraints and moral ideals that guide their activities. Our aim is to provide a wide array of materials—drawing not only from law, but also from history, philosophy, psychology, economics, and sociology—that will place questions of professional identity in broader context.
One of the most striking changes in the legal world over the past three decades has been the increasing attention to professional responsibility and regulation. Issues concerning the ethics of lawyers and the distribution of legal services have become matters of broad concern, both within and outside the profession. Since the 1980s, the law of lawyering has developed at an explosive rate; empirical research has expanded at a corresponding speed; and the philosophical underpinnings of professional roles have attracted more searching examination.
These developments underscore a final sense in which courses in legal ethics are distinctive. They concern lawyers’ conduct, choices and values. Partly for that reason, this book centers on problems, together with discussion notes and questions. Yet the issues raised in these materials are rarely simply hypothetical; they draw on experiences from reported cases, empirical research, personal interviews, and journalistic as well as scholarly publications. They involve real lives and real 2consequences. Furthermore, notwithstanding the codified rules of professional conduct, the subject involves many fundamental unanswered questions.
It is, of course, far easier to take the “moral high road” in class than in life—even when the high road is obvious. This book, however, focuses primarily on contexts where the most appropriate course of conduct is not self-evident. Our attention centers not on issues as straightforward as maintaining a separate bank account for client funds but on areas where there are strong competing values or unresolved doctrinal and policy issues at stake. While many of the problems that follow do not have determinate answers, the materials can suggest better and worse ways of analyzing the right questions. Before addressing these problems, however, it is helpful to focus on certain assumptions about the subject of legal ethics.
A.What Is the “Ethics” in Legal Ethics?
In one sense, the term “legal ethics” refers narrowly to the system of professional regulations governing the conduct of lawyers—the subject-matter tested by the Multistate Professional Responsibility Examination (MPRE). In a broader sense, however, legal ethics is a special case of ethics as understood in the central traditions of philosophy and religion. From this broader perspective, legal ethics cuts more deeply than legal regulation: It concerns the moral aspects of our lives as lawyers. As Socrates noted, the subject of ethics “is not about just any question, but about the way one should live.”1
An organizing premise of this book is that these two aspects of legal ethics cannot be separated. The study of codified ethical rules apart from broader ethical principles makes no sense; a code of professional conduct that ignored the moral commitments of those it governed would be doomed to irrelevance. On the other hand, an abstract study of legal ethics unconnected to the institutional and doctrinal basis of law practice would be equally ineffective. Our aim is to integrate both dimensions of analysis.
The study of legal regulations is a familiar part of the law school curriculum; to a certain extent, it is the law school curriculum. On the other hand, the study of ethics in the sense Socrates defined it forms the subject matter of moral philosophy, a discipline in which many lawyers, law students, and law teachers lack extended training. However, for our purposes, no such background is necessary: Most academic moral philosophy concerns theoretical issues that have little direct bearing on legal ethics, even in the broad, Socratic sense.
31.The Distinction Between Ethics and Morality
An obvious threshold issue is what exactly is ethics and whether it differs from morality. In everyday conversation, the terms sometimes carry different connotations. When we call lawyers or other professionals “unethical,” we usually mean that they have been somehow dishonest—that they have lied, cheated, or become involved in a conflict of interest. By contrast, calling a person “immoral” may conjure up an image of depravity—of cruelty, sexual misconduct, or otherwise illicit behavior. Moral philosophers, however, do not generally use the words “ethics” and “morality” in these restrictive senses, and this book uses them interchangeably.
This is not to imply that the terms have always been interchangeable. Some theorists, including the prominent nineteenth century German philosopher Hegel, have reserved the word “ethics” to refer to the customary norms within a specific society—the society’s ethos.2 The term “morality,” on the other hand, is often used to refer to philosophical systems involving abstract universal norms of right and wrong.3 Immanuel Kant’s famous “categorical imperative”—“act so that you treat humanity . . . always as an end, and never as a means only”—is an example of such a universal moral principle.4 The categorical imperative, Kant believed, is valid at all times and in all cultures, and he offered a general argument for its truth.
This distinction between theory-based morality and custom-based ethics suggests a sharp separation between everyday judgments and philosophical theories. In fact, philosophical theories of morality generally reflect and reinforce strands of the culture’s dominant ethical norms and common-sense understandings. For example, Kant’s categorical imperative has two distinctive prescriptions, neither of which is peculiar to his philosophical system. First, Kant insists that the moral law applies to everyone: it speaks of “humanity” in general. Second, Kant instructs us to treat others as ends and not merely as means. The first injunction—to treat everyone, including those of other races, nationalities, or religions, with full moral consideration—is hardly an invention of academic philosophers. Similarly, in everyday life we often criticize people for “using” others merely as means to an end. What is distinctively philosophical about Kant’s approach is not its core moral insights, but the extended argument on which they are grounded. Because philosophical moral theories such as Kant’s overlap with customary ethical traditions (secular as well as religious), no general distinction between ethics and morality seems helpful.
4There is, however, an important difference between accepting customary ethical beliefs on faith and subjecting them to critical reflection. Positive morality refers to the dominant moral traditions in a particular society. Critical morality involves a systematic examination of those traditions to determine whether they should be obeyed, modified, or abandoned. One of the most important functions of legal ethics is to offer critical scrutiny of the positive morality of legal practice. In the chapters that follow, conventional norms such as those regarding client loyalty, confidentiality, and access to legal services are subject to such reflection.
A related set of questions has to do with the basis of moral judgment. Values differ significantly within and across particular societies. From this fact, moral relativists argue that ethics are not universal, but rather relative to individuals or cultures.5 In its extreme form, relativism denies the possibility of generalizable moral judgments. This position is often rooted in healthy instincts of tolerance and humility. “Judge not, lest you be judged” counsels appropriate restraint in contexts of moral complexity.6
Yet almost no one—even those who claim to be relativists—accepts relativism in its most extreme form. If someone steals our property or betrays our friendship, it is natural to feel outraged. But pursued to its logical extreme, relativism can condemn such practices only if they violate the relativist’s own standards; and the relativist will have to concede that the thief or the treacherous friend may be justified according to his or her own standards. To find an action repugnant while insisting that others can justifiably pursue it is a feat that few of us are willing or able to perform.
Suppose, for example, that someone you regard as a close friend has taken your work and claimed it as his own, or has blamed you for dishonest acts that he committed. A true relativist would have to acknowledge that “I think it’s wrong, but maybe from his point of view what he did was justified. Who am I to say?” If such a response seems unsatisfying, that should tip us off that something is wrong with relativism. There is, moreover, an internal contradiction in relativists’ claim that because no universal moral standards exist, it is wrong to 5impose one’s own values. If there are no universal principles, by what criteria does the relativist claim that moral praise or blame are “wrong”?
Moreover, moral convictions are often less indeterminate than is commonly supposed. Those who engage in reflective decisionmaking frequently come to share certain basic moral premises. Given full information and an opportunity for dispassionate and disinterested judgment, individuals appear likely to agree about certain essential values, such as honesty, loyalty, benevolence, and avoidance of unnecessary harm. Some biologists and neuroscientists believe that certain moral dispositions and emotions have been adaptive for survival and are now hard wired into the brain.7 All known societies agree on many basic moral judgments, for example that doing a bad thing intentionally is worse than doing it by accident.8
Of course, disagreements often arise about how to apply broadly shared values or resolve conflicts between them in particular cases. However, much of the controversy surrounding moral issues involves disputes about facts, not principles. The same is true of most of the hotly contested questions of legal ethics. Lawyers disagree about exceptions to the duty of confidentiality not because they disagree about what values are important but because they disagree about what rules would best serve those values. Would requiring lawyers to disclose certain confidential information to protect third parties significantly erode client trust and candor? In the long run, would imposing greater disclosure obligations put lawyers in a position to prevent more or less harm?
Thus, we can remain sensitive to the dangers of moral arrogance without abandoning moral convictions. We can also sometimes acknowledge uncertainty about our moral judgments, particularly when the issues are complex or controversial. We can, however, attempt to think the matter through honestly, to consider opposing views, and to make allowances for influences that might distort our judgment. And why ask for more? We must often make decisions in the face of factual uncertainty, yet this does not make us relativists about facts. When we face a moral decision, we have no choice but to do what seems right to us, even though we recognize that we could be mistaken. After all, the alternative to acting on the judgment that seems best is acting on a judgment that seems worse.
6To some students, legal ethics seems vague or “squishy,” while legal rules seem comparatively clear and determinate. From this perspective, it seems preferable to focus only on the law of lawyering. Yet as every skilled lawyer knows, legal rules are often complex and ambiguous. What constitutes a “reasonable person,” an appropriate business judgment, or the right balance between competing constitutional values? The complexity and indeterminacy of moral judgments is no greater than that of corresponding legal judgments.
This is not to deny that there are “easy cases” in law (as indeed there are in ethics), and that at times the law of lawyering may apparently settle an issue and thereby remove it from the realm of conscience and discretion. Yet even in cases that are clearly covered by formal ethics rules or other law, moral issues inevitably remain.
First, and most fundamentally, there is always the question whether to accept a client’s case. Second is the question of how, and by what means, to pursue it. On those (hopefully rare) occasions when settled legal rules clearly demand a course of action that the lawyer finds morally repugnant, serious soul-searching is necessary. To dismiss the issue simply because the law permits a course of action is a rationalization, not a reason, for decision.
In any event, many of the formal ethics rules leave the ultimate decision to the lawyer’s discretion. Thus, for example, the ABA’s Model Rules of Professional Conduct permit, but do not require, a lawyer to reveal confidential client information “to prevent reasonably certain death or substantial bodily harm.”9 Bar ethical rules permit, but do not require, a corporate lawyer to reveal confidences if the corporation’s highest authority insists on violating the law in a way that is likely to injure the corporation.10 They permit, but do not require, a lawyer to decline or withdraw from representation if the client insists on taking an action that the lawyer finds “repugnant.”11 They permit, but do not require, lawyers to include “moral, economic, social and political factors” in the advice they offer clients.12 They recommend, but do not require, that lawyers perform fifty hours annually of pro bono service.13 For these as well as many other issues that arise in legal practice, the law itself invites lawyers to consider their own moral values.
A basic understanding of the primary frameworks of moral philosophy can sometimes be helpful in addressing the ethical issues that 7arise in legal practice. In essence, moral philosophy is concerned with what makes an action right or wrong. That inquiry has given rise to three basic approaches: those that focus on the consequences of the action; those that emphasize the action itself; and those that center on the character of the actor.
Consequentialism judges the rightness or wrongness of actions based on their consequences. The most familiar consequentialist theory is utilitarianism, primarily as developed by Jeremy Bentham, John Stuart Mill, and Henry Sidgwick.14 In its most familiar form, utilitarianism evaluates actions on the basis of the happiness or welfare they create or the harm they inflict: utilitarians attempt to sum up these consequences, and recommend the action that creates the “greatest good for the greatest number.” From this perspective, an individual’s moral obligation is to choose a course of action that maximizes utility, or at least surpasses some threshold of utility.
Such approaches have two major limitations. One involves indeterminacy: it will often be extremely difficult to predict and weigh how one’s actions affect aggregate welfare. A second limitation is that, because consequentialists simply add together the gains and losses of society’s members, they can justify policies that benefit the many at the expense of the few. For this reason, critics often object that consequentialism cannot safeguard minority rights and is insensitive to the distribution of harms and benefits, a deficiency that other ethical theories seek to address.
Contemporary theories of consequentialism attempt to meet these and other objections with modifications and adjustments of the theory. One result is that today’s philosophical literature on consequentialism is often complex and technical.15 For our purposes, the most important points to keep in mind are simply (a) that moral consequences matter and (b) there are reasons to think that consequences may not be the only thing that matters.
Other theories are act-centered rather than consequence-centered. They are usually labeled deontological, a term derived from the Greek word for duty. Some actions may be right or wrong, permitted or forbidden, regardless of their consequences. Therefore it may be our duty to avoid wrong and do right, no matter what the consequences.
In a famous passage in The Brothers Karamazov, one of Dostoyevsky’s characters poses this challenge:
Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace 8and rest at last. Imagine that you are doing this but that it is essential and inevitable to torture to death only one tiny creature—that child beating its breast with its fist, for instance—in order to found that edifice on its unavenged tears. Would you consent to be the architect on those conditions? Tell me. Tell me the truth.16
For a utilitarian, this question is easy: To achieve happiness for millions of individuals one would of course torture a single child. But perhaps there is something suspect about a theory that makes this an easy question. There is much to be said for the principle that intentionally inflicting suffering on the innocent is wrong regardless of the consequences.
Immanuel Kant’s categorical imperative forbids us from using other individuals as a mere means, no matter how compelling the end. Kant, the best-known deontological philosopher, focused heavily on our duty to follow the categorical imperative.17 Duties lend themselves to codified rules, and in many countries codes of professional ethics are referred to as “deontologies.” Among contemporary deontologists, however, the focus has shifted from an emphasis on moral duties to an emphasis on moral rights. A modern proponent of deontological approaches would argue that the innocent child in Dostoyevsky’s fable has a moral right not to be tortured—an entitlement that overrides the gain in utility to humanity at large. In the words of philosopher Ronald Dworkin, rights “trump” utility.18
Of course, there is plenty of room for debate about what our moral rights are. Moreover, in defining the scope of moral rights, it may be important to take account of consequences. Thus, it is most accurate to think of deontology as a family of theories rather than as a single theory, which all rest on the view that consequences are not determinative.
A third group of theories are generally lumped together under the label virtue ethics. These theories focus on the character or virtue of the actor, rather than on the nature of the act or on its consequences. Aristotle’s Nicomachaean Ethics offered the first systematic expression of this approach. He focused on character and stressed the importance of certain key virtues, such as honesty, courage, temperance, and justice, along with the intellectual virtue of practical wisdom. In the Middle Ages, Christian moralists followed Aristotle’s approach, although they also recognized certain virtues, such as mercy, that were quite foreign to Greek thought. A number of contemporary legal ethicists have attempted 9to revive the Aristotelian tradition and have insisted that the most important questions of ethics concern character.19 In their view, it is important to focus on the development of individual moral judgment, rather than the reduction of morality to impersonal rules.20
To focus on virtue in legal ethics is to shift emphasis from the nature of particular actions and their consequences to the character of the lawyers who perform these actions. Under this approach, conduct is subject to praise or condemnation primarily on the grounds of what it reflects about the person; acts may be dishonest or forthright, extortionate or generous, disloyal or decent. Virtue ethicists point out that someone uncertain of the virtuous course of action might get more guidance from looking at a trusted ethical role model than from the principle of utility or the categorical imperative.21 Of course, even a virtuous lawyer can be perplexed about how to strike the right balance between competing values. Nor is a unified concept of character consistent with much contemporary research in psychology, neuroscience, and organizational behavior, which documents the situational nature of moral conduct and the extent to which contextual pressures can undermine individuals’ ethical commitments.22
According to such research, neither reason nor intuition always guides individuals to the most ethical course of action.23 In the words of Nobel Prize winner Daniel Kahneman, “thinking slow” and “thinking fast” both have their place.24 In some instances, reason allows us to step back and consider long-term consequences of impulsive self-interested behavior; in other contexts, it provides an opportunity to rationalize behavior that our initial instinct tells us is wrong. Such research indicates the need for lawyers to recognize their own moral fallibility and susceptibility to self-interest, and to build in triggers for internal and external checks on their conduct.
5.The Possibility of Pluralism
All of these approaches have something to recommend them; all are subject to significant limitations. To choose among them, it is helpful to 10reflect on what would make them useful under particular circumstances. The eminent philosopher John Rawls suggested that a moral theory should be tested against our “considered moral judgments”: those we would make on reflection, but before we begin to theorize. A useful moral framework offers principles that accommodate our considered moral judgments. These principles can then help revise our judgments. Our judgments thus modified may then assist in further refining our principles, and so on. Eventually, Rawls suggests, we should arrive at a “reflective equilibrium” between principles and judgments, in which neither requires further adjustment.25 This approach is consistent with recent work in cognitive psychology, which suggests that individuals generally arrive at moral decisions through intuitive responses, and then consider reasons that support or challenge their initial judgment.26
In practice, it may well be that different areas of our moral experience will fall into reflective equilibrium with different moral principles; some judgments may be best systematized by consequentialist theories, some by deontological theories, and some by theories of virtue. Cognitive psychology can also help reconcile our theoretical premises with moral practices. Although the objective of traditional philosophy was to produce unified theoretical frameworks, we have no reason to believe that our individual moral worlds are that tidy. According to many contemporary philosophers, our moral experience is, at its deepest level, pluralistic; no single framework is adequate to encompass all aspects of our moral life. As Anthony Appiah puts it, “my philosophy is that everything is more complicated than you thought. . . . The messiness of ethics goes down deep.”27 While we may look to moral theories for guidance, we still need to make intuitive judgments about which moral theory is most appropriate to the case at hand.
B.A Note on the Rules in This Text
Throughout this book, we will be referring to Rules of Professional Conduct. Textbooks generally cite to the American Bar Association’s Model Rules of Professional Conduct, and students are tested on the Model Rules in the Multistate Professional Responsibility Examination (MPRE). Indeed, accredited law schools are required to teach the Model Rules. Federal law grants the ABA accrediting authority over U.S. law schools, and the ABA has mandated that “A law school shall require all students in the J.D. program to receive . . . instruction in the Model Rules of Professional Conduct of the American Bar Association.”28
11However, the ABA has also copyrighted the Model Rules, and it does not grant permission to reproduce the Model Rules in the text without also reproducing the sometimes-lengthy comments in full; permission is also conditioned on payment of a substantial fee. We think this is not a good use of your money (additional casebook pages and fees mean additional cost), because the comments are readily available on the Internet.
Once a state adopts a Model Rule into its own law, the language incorporated into the state rule enters the public domain.29 As it happens, the State of Delaware adopted almost all the Model Rules and their comments verbatim as its own Rules of Professional Conduct.30 Accordingly, in this book, except in a few cases when otherwise noted, all direct quotations from rule language are from the Delaware Rules of Professional Conduct. Whenever we quote from the Delaware Rules, it should be understood that the language is identical to the corresponding Model Rule. When we merely cite to a rule rather than quoting it, we will continue to cite to the Model Rules.31
1Plato, The Republic of Plato 31 (Allan Bloom trans. 1968).
2Georg Wilhelm Friedrich Hegel, The Phenomenology of Spirit 266–94 (A. Miller trans. 1977); Bernard Williams, Ethics and the Limits of Philosophy 5–7 (1989).
3Hegel, supra note 2, at 364–74.
4Immanuel Kant, Foundations of the Metaphysics of Morals 46 (Lewis White Beck trans. 1959 2d ed. 1990).
5There is a vast literature on relativism. Among the most prominent and useful treatments are Gilbert Harman & Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (1996); Bernard Williams, Morality: An Introduction to Ethics 20–26 (1972); Gilbert Harman, Moral Relativism Defended, 84 Phil. Rev. 3 (1975). For good overviews of the relativism debate as it relates to legal ethics, see Katherine R. Kruse, Lawyers, Justice, and the Challenge of Moral Pluralism, 90 Minn. L. Rev. 389 (2005); Paul Tremblay, Shared Norms: Bad Lawyers and the Virtues of Casuistry, 36 S.F. L. Rev. 659 (2000); W. Bradley Wendel, Teaching Ethics in an Atmosphere of Skepticism and Relativism, 36 S.F. L. Rev. 720 (2002).
6Matthew 7:1; see also John 8:7 (“He who is without sin among you, let him cast the first stone”).
7For a readable and compendious survey, see Robert J. Sapolsky, Behave: The Biology of Humans at Our Best and Worst (2018).
8See John Mikhail, The Elements of Moral Cognition (2011) (suggesting evolution of moral grammar); Rebecca Saxe, Do the Right Thing: Cognitive Science’s Search for a Common Morality, Boston Rev., Sept. Oct., 2005, at 33 (noting high level of consensus across race, sex, wealth, religious affiliation, nationality and educational background on questions such as whether killing one person is justifiable to save five others).
9Rule 1.6(b)(1).
10Id. 1.13(c).
11Id. 1.16(b)(3).
12Id. 2.1.
13Id. 6.1.
14John Stuart Mill, Utilitarianism (Mary Warnock ed., 1962); Henry Sidgwick, Methods of Ethics (7th ed. 1962); Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in A Fragment on Government and an Introduction to the Principles of Morals and Legislation (Wilfrid Harrison ed., 1948).
15For an overview of recent approaches, see Consequentialism: New Directions, New Problems (Christian Seidel ed., 2018).
16Fyodor Dostoyevsky, The Brothers Karamazov 226 (M. Komroff ed., Constance Garnett trans. 1957). For a more general discussion of this issue, see John Taurek, Should the Numbers Count?, 6 Phil. & Pub. Aff. 293 (1977).
17Kant, supra note 4. Not all interpreters agree that Kant is a deontologist. See Barbara Herman, The Practice of Judgment 208–40 (1996) (arguing that Kant’s moral theory is not deontological).
18Ronald Dworkin, Taking Rights Seriously xi (rev. ed. 1978).
19See Justin Oakley & Dean Cocking, Virtue Ethics and Professional Roles (2006); Deborah L. Rhode, Character: What it Means and Why It Matters (2019).
20Useful sources on historical and contemporary virtue ethics include the Oxford Handbook of Virtue (Nancy E. Snow ed., 2018); Handbook of Virtue Ethics (Stan van Hoot ed., 2014); Cambridge Companion to Virtue Ethics (Daniel C. Russell ed., 2013).
21See Rosalind Hursthouse, On Virtue Ethics 25–35 (1999) (arguing that virtue ethics is at least as useful as alternative moral theories in guiding right action).
22See research summarized in Deborah L. Rhode, Character: What It Means and Why It Matters 1–40 (2019); Kwame Anthony Appiah, Experiments in Ethics 39–55 (2007); John Doris, Lack of Character 22–47 (2002); David Luban, Integrity: Its Causes and Cures, 72 Fordham L. Rev. 279 (2003).
23David DeSteno & Piercarlo Valdesolo, Out of Character: Surprising Truths About the Liar, Cheat, Sinner (and Saint) Lurking in All of Us 25, 231 (2011); see also David Eagleman, Incognito: The Hidden Life of the Brain (2011) (discussing the “team of rivals” in the brain).
24Daniel Kahneman, Thinking, Fast and Slow (2011).
25John Rawls, A Theory of Justice 46–53 (1971).
26For useful discussion, see Milton C. Regan, Jr., Moral Intuitions and Organizational Culture, 51 St. Louis L.J. 941 (2007).
27Appiah, supra note 22, at 198, 201; see also, e.g., Isaiah Berlin, The Crooked Timber of Humanity (1991); Stuart Hampshire, Innocence and Experience (1989); Stuart Hampshire, Morality and Conflict (1983).
28ABA Section of Legal Education and Admissions to the Bar, Standards for Approval of Law Schools and Interpretations, Ch. 3, Program of Legal Education, Standard 302, Curriculum, subsection (b), available at http://www.abanet.org/legaled/standards/chapter3.html.
29See Veeck v. S. Bldg. Code Congress, Int’l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) (stating that reproduction of a jurisdiction’s code, identifying it as the code of that jurisdiction, does not infringe the copyright of an organization that drafted a model code that was the source of the language).
30Lisa Lerman and Philip Schrag believe that is because the then-Chief Justice of Delaware, E. Norman Veasey, served as chair of the ABA’s Ethics 2000 Commission, which drafted the 2002 Model Rules. Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law 16 (2d ed. 2008).
31We are grateful to Professors Lerman and Schrag for the idea of quoting state ethics rules rather than Model Rules.
American lawyers have long prided themselves on being part of a profession. Their status as professionals has been critical to attorneys’ self-esteem, social standing, and regulatory independence. Since the concept of professionalism carries so much significance for lawyers both individually and collectively, this book begins by trying to get a better sense of what exactly the concept means.
The term “profession” is both elastic and elusive. Its meaning has varied considerably over time and across cultures, and has inspired continued debate among contemporary social theorists. The most common definition, reflected in a report by the American Bar Association (ABA) Commission on Professionalism, has stressed professionals’ special expertise and ethical responsibilities. Borrowing from an influential work by Roscoe Pound, former Dean of Harvard Law School, the Commission defined professionalism as the practice of a “learned art in the spirit of a public service.”1
The need for occupational groups with special knowledge and moral commitments has, in turn, been thought to account for other distinguishing features of professions, such as ethical codes, regulatory autonomy, prescribed forms of training, and a monopoly over certain services. According to sociologist Eliot Freidson, whose definition is quoted with approval by the ABA Commission, a profession is:
An occupation whose members have special privileges, such as exclusive licensing, that are justified by the following assumptions:
1.That its practice requires substantial intellectual training and the use of complex judgments.
2.That since clients cannot adequately evaluate the quality of the service, they must trust those they consult.
3.That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good, and
4.That the occupation is self-regulating—that is, organized in such a way as to assure the public and the 14courts that its members are competent, do not violate their client’s trust, and transcend their own self-interest.2
At the close of the 20th century, observers of the American legal profession declared that it was the “best of times and the worst of times” for lawyers.3 Members of the bar enjoy great power, wealth, and status. The number of lawyers has more than doubled (from about 650,000 to 1.3 million) over the last three decades.4 Law is among the highest-paying professions and a common path to leadership in both the public and private sectors. Yet that overall prosperity has been accompanied by increasing competition, economic insecurity, and pressure. Consumer demand has limited the bar’s ability to preempt competition by nonlawyers for certain law-related services. (Accounting firms have made especially threatening inroads on the profession’s traditional turf.) At the same time, globalization has brought more foreign competitors to American financial centers and has also encouraged clients to outsource business to offshore legal service providers.
Other dynamics have reduced the need for lawyers and intensified competition for the legal work that remains. Technology is displacing demand for many lawyers’ services.5 Artificial intelligence and online service providers such as LegalZoom “aren’t just eating [law firms’] lunch; they are eying breakfast and dinner as well.”6 As Richard Susskind has argued, the traditional customized model of lawyering is being replaced by commoditized legal work and the broader economy’s relentless pressure towards “more for less” will intensify this trend.7 So too, corporate clients, who are facing increased pressures in their own markets, have responded by curtailing legal costs. Businesses have moved more routine work in-house and parceled out more projects based on short-term competitive considerations rather than long-term lawyer-client relationships.
Escalating costs and competition have resulted in greater focus on the bottom line, and higher billable-hour requirements. In private practice, partnership means less and is harder to obtain. Recent law 15graduates face a tougher job market with higher debt burdens than their predecessors. Moreover, among practitioners who represent primarily individual rather than corporate clients, the demand for services is relatively weak, nonlawyer competition has increased, and average earnings are modest. The consequence has been widening income disparities within the profession, and exceptionally high rates of stress, depression, and substance abuse.8
Still, despite such challenges, law continues to be a path to leadership in the private, public, and nonprofit sectors. It also continues to offer a large number of lawyers an intellectual challenge, an opportunity for service, and a comfortable living. Also, to a much greater extent than other occupations, law gives its members significant control over their own regulation and workplace structures. To the extent that there are problems in the profession, lawyers have a unique opportunity to develop solutions.
Although the term “profession” did not come into use until around the 16th century, individuals have been performing services that we would now associate with the legal profession for at least two thousand years. By the fourth century B.C., advocates were assisting parties in Greek tribunals and were involved in counseling and legislative work. However, these individuals did not form a cohesive “profession” in the sense we that now use the term. Training was informal, ethical standards were lax, and discipline was lacking.9
A somewhat more professionalized culture developed in early Rome. Between the first and third centuries A.D., legal advisors and advocates began to form communities around the courts in major cities. These groups attempted to standardize training and provide some disciplinary oversight, as well as to assist the development of a systematic jurisprudence.10
With the fall of the Holy Roman Empire, this professional tradition also declined. Early Anglo-Saxon methods of dispute resolution, particularly trials by ordeal, presented less need for trained advocates. However, in England, after the Norman conquerors imported certain innovations, including trial by jury, the usefulness of partisan assistance increased.11 During the 12th and 13th centuries, the foundations for a 16professional community began to emerge. This community was highly stratified, however, with different specialties having monopolies over certain functions and certain courts. Ultimately, the English bar divided into two groups. The most elite were the barristers, who provided trial representation and received training by attending one of several Inns of Court and then by serving as apprentices to practicing barristers. The remaining legal work was performed by solicitors, who were governed by rules of court and professional associations, supplemented by legislation. That division remains in contemporary Great Britain, although the boundaries have blurred over the last quarter-century, and areas of overlapping jurisdiction have increased.
By contrast, the American bar began without such formal stratification. Although the 17th and 18th centuries were not “friendly years for lawyers,” they were, as historian Lawrence Friedman puts it, “a necessary evil. . . . As soon as a settled society posed problems for which lawyers had an answer or at least a skill, lawyers began to thrive, despite the hostility.”12 Friedman notes that the profession grew rapidly in the late 18th and 19th centuries, and by 1900, there were over a hundred thousand practitioners. The American bar was a “nimble profession” and quickly adapted to the out of court needs of an evolving society. According to Friedman, “its nimbleness was no doubt due to the character of the bar: open-ended, unrestricted, uninhibited, attractive to sharp ambitious men.”13 During this early period, the bar tried to raise standards, “tried to limit entry into the field, and (above all) tried to resist conversion of the profession into a ‘mere’ business or trade.”14 The bar’s efforts were only partly successful, but lawyers did occupy a special status in American life, for reasons Alexis de Tocqueville famously highlighted during his visit to the early republic.
Alexis de Tocqueville, Democracy in America
Vol. I, 283–90 (H. Reeve trans., P. Bradley ed., F. Bowen rev., 1973) (1st ed. 1835).
In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere. . . .
Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally 17render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude. . . .
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other men, are governed by their private interests, and especially by the interests of the moment.
In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. . . .
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied. . . .
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a two-fold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be 18maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings. . . .
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation’s democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience. . . .
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and 19the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
1.Legal historian Robert Gordon notes that, in recent years, the profession has grown dramatically in size, specialization, and diversity, and that status and income differentials among practitioners have widened.15 What other changes have been most significant and what social, economic, and technological forces have helped account for these changes?
2.Historical research suggests that not all attorneys experienced being part of a natural aristocracy in the sense that de Tocqueville described. Accounts by frontier lawyers during the mid-19th century indicate that many practitioners were barely able to piece together a livelihood, and that much of their difficulty stemmed from the absence of public respect. Young attorneys often reported considerable difficulty in receiving payment for services they provided. As one struggling Texan wrote home to relatives, “I wish the fees came in half as fast as the cases.”16
Similarly, Joseph Baldwin, in his wry caricature, offered the following description of his legal community:
[T]hirty or forty young men . . . standing ready to supply any distressed citizen who wanted law. . . . I must confess [that the assistance] looked to me something like a swindle. . . . There was one consolation: the clients were generally as sham as the counselors. For the most part, they were either broke or in a rapid decline. They usually paid us the compliment of retaining us, but they usually retained the fee too, a double retainer we did not much fancy. However, we got as much as we were entitled to and something over. . . . The most that we made was experience . . . [in] quirks and quibbles . . . . 17
Does this portrait cast doubt on contemporary lawyers’ frequent complaint about the recent decline of law from a profession to a business?
Experts dispute the extent to which lawyers in the 19th and early 20th century had a more civic-minded conception of their professional role than contemporary practitioners. Some scholars argue that the American bar once 20embraced a more ethically robust view of the lawyer as statesman.18 Other experts believe that moral activism by 19th-century attorneys is vastly overstated, and that the notion of ethically neutral, client-centered advocacy was as widely accepted then as it is now.19 What turns on this dispute? Does the bar’s history inform contemporary debates?
C.The Structure of Contemporary Practice
Over the last century, the American bar has become increasingly fractured and specialized, and the work lives of lawyers in various fields are often quite different. In a landmark study of the Chicago bar, first published in 1980 and updated in 1998, sociologists John Heinz and Edward Laumann portrayed a profession sharply divided into two hemispheres. Most lawyers represented either individuals and small businesses or large organizations such as corporations, unions, and the government. Few ever “crossed the equator” and those serving corporations and large organizations generally were of a higher socioeconomic status.20
Accordingly, Heinz and Laumann argued that the traditional view of the bar as a single, unified profession no longer fit the facts.
[The lawyer who commutes to Brussels or Tokyo to negotiate international franchise agreements] will have little in common with the lawyer who haunts the corridors of the criminal courts hoping that a bailiff will, in return for a consideration, commend his services to some poor wretch charged with a barroom assault. Both of those private practitioners will differ from the government-employed lawyers who prosecute criminal cases or who practice public international law in the employ of the State Department, as the two sorts of government-employed lawyers differ from one another.21
In the 1998 update of their study, Heinz and Laumann found that the income gap between corporate and non-corporate practitioners had widened. Demand for services had grown more rapidly in the business sector, and by the late 1990s, about 60 percent of lawyers’ time was devoted to corporate clients compared with half in the 1970s. It thus appeared doubtful that the profession’s current organizational structures 21“provided enough interchange to produce a bar that functioned as a community of common pursuit.”22
A pathbreaking study of new lawyers by the American Bar Foundation and the National Association of Law Placement also provides a window into how the bar is evolving. The study, After the JD, is following a national cross-section of 5000 lawyers who all passed the bar in 2000. The study’s first report (AJD1) describes lawyers’ careers two to three years into practice.23 The second (AJD2) examines the trajectory of the lawyers’ careers after roughly seven years of practice, and the third (AJD3) reports on those careers after twelve years.24 According to AJD3, these lawyers are significantly more diverse than their predecessors: 50.4 percent are women, up from 5 percent in 1970, and 17.2 percent are nonwhite, compared to 5 percent in 1970. In terms of religious affiliation, 30 percent are Protestant, 27 percent Roman Catholic, 7 percent Jewish, and 23 percent report no religious affiliation. Most come from relatively privileged backgrounds. About two-thirds had fathers who graduated from college, and half had college-graduate mothers, a figure three times the national average.
In the third wave of the study, just under half (48.5 percent) were working in the private law firm sector, 28 percent were in the public sector, 20 percent were in business, and 3.5 percent were in “other” settings.25 More recent figures from the ABA and National Association of Law Placement suggest that immediately upon graduation, most lawyers go into private practice, about 10 to 13 percent land in business, 12 to 13 percent work for the government, 10 to 11 percent clerk, 12 percent entered the government, and 5 to 7 percent joined public interest organizations.26 The work lives of lawyers have also changed as workloads have increased. In AJD3 the median work week was forty-seven hours compared with forty hours for full-time American workers. However, roughly 15 percent of responding lawyers (most in large firms) reported working sixty hours a week or more.27 Complexity and specialization in work have also escalated. At the turn of the 20th century, most lawyers were generalists; now most are specialists and 22project managers.28 About three-quarters of the lawyers in AJD3 reported that at least half of their work is in a single substantive field.29 Job mobility has also increased. Within the first three years of practice, a majority of lawyers had changed jobs at least once, and in the next five years, a majority had changed jobs again.30
1.How does the structure of legal practice affect legal ethics? Will the increasing diversity and specialization of the bar work against consensus on issues such as self-regulation, competition, and the delivery of legal service? To what extent do lawyers feel a sense of common professional identity and interests? Does it still make sense to talk of the legal profession?
2.What are the causes and consequences of the trend toward larger law firms and greater specialization?
1.Historical Frameworks: Gender, Race, and Ethnicity
During much of the 18th and 19th centuries, gender defined the geography of American life, and a woman’s primary place was in the domestic rather than the professional sphere. There were, however, exceptions to this general pattern. Particularly in the Colonial Era, when labor was scarce and relatively few occupations required formal licenses, some white women managed to participate in legal transactions either by acting as their husbands’ representatives or successors, or by obtaining special authorization to proceed as independent agents. Few of these women, however, managed to attain positions of significant public power or recognition, and those who did generally acquired an anomalous status. The first American female attorney was an “honorary male” in a literal as well as figurative sense; she was frequently addressed in person and in 17th-century court records as Gentleman Margaret Brent.31
During the late 18th century, the gradual formalization of bar admission criteria made it increasingly difficult for women to act as lawyers. And, of course, African American women under slavery had no capacity to assert legal rights. However, after the Civil War, the expansion of women’s educational opportunities and political activism contributed to a growing stream of female applicants to the bar. In 1867, 23Iowa became the first state to license a woman attorney, and the following decades witnessed a gradual increase in female candidates from largely white middle- and upper-middle-class backgrounds.
Women’s initial reception in most jurisdictions was less than enthusiastic. In a celebrated 1873 decision denying Myra Bradwell admission to the Illinois bar, three concurring Supreme Court Justices invested the sexes’ “separate spheres” with both spiritual and constitutional significance:
The family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong[s], or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.32
Although the precise method of divine communication was never elaborated, it remained accessible to other decisionmakers as well. Judges in Wisconsin, Pennsylvania, and the District of Columbia similarly concluded that women’s nature was to nurture, and that any professional pursuits constituted a departure from the natural order and “when voluntary, treason against it.”33 As one late 19th-century judge explained, the “peculiar qualities of womanhood, its gentle graces, its quick sensibility, [and] its tender susceptibility” were surely not qualifications for “forensic strife.”34
Many female applicants, however, remained unconvinced. By the turn of the century, various political, legal, and social forces had coalesced to secure women’s rights to admission in about half the states, and by 1920, formal barriers were largely removed. Informal obstacles, however, remained. “Bring on as many women lawyers as you choose,” predicted one District of Columbia judge, “I do not believe they will be a success.”35 Clarence Darrow agreed. As he explained in an early 20th-century address to a group of Chicago women attorneys: “You can’t be shining lights at the bar because you are too kind. You can never be corporation lawyers because you are not cold-blooded. You have not a high grade of intellect.” Although conceding that female practitioners 24might be acceptable as counsel for divorce and nonpaying criminal cases, he doubted that women would “ever make a living” in the law.36
Such attitudes became self-fulfilling prophecies. Female professionals who rejected their maternal mission were typically treated as social deviants, but women who restricted work to raise families were denounced for squandering educational opportunities that should be reserved for full-time male breadwinners. Many bar associations and law schools denied female applicants or limited their admission. Harvard Law School remained all-male until 1950 and not until 1972 did all accredited law schools eliminate explicit sex-based restrictions.37 Substantial disparities also prevailed in hiring, salaries, and promotion. Private firms frequently declined to employ women, and almost no rationalization was too trivial. As one Wall Street partner explained to a female applicant, much as his firm would like to hire a woman, the logistical difficulties were simply too great: she couldn’t use the attorneys’ bathroom; she couldn’t be relegated to the secretaries’ bathroom; and the firm couldn’t afford to build another facility.38 In 1960, women constituted less than 3 percent of the American bar, and were largely excluded from fields of practice with the greatest status, influence, and financial rewards.39
Major changes came with the rise of the contemporary women’s movement and the broader social, economic, and demographic changes that it reflected. By 1983, women constituted over a third of new entrants to the profession, and by the turn of the century, about half.40 But as subsequent discussion indicates, their position remains far from equal.
Barriers of race and ethnicity have been similarly significant. In the late 19th and early 20th centuries, many employers, educators, and bar associations openly discriminated against immigrants from Eastern Europe and Asia, as well as Jews from all ethnic backgrounds.41 A 1939 report found that Jewish lawyers accounted for half the practitioners in New York City, but few were working in corporate firms; the exceptions were mainly in firms with predominantly Jewish clients.42
Racial discrimination has been particularly pervasive and persistent. Although the first black lawyer was admitted to the bar in 251844 (Macon Allen, Maine), few blacks had any realistic possibility of bar membership until after the Civil War. The family of the first black to graduate from a law school (George Ruffin, Harvard, 1869) came from Virginia, where it had been a crime to teach any black person to read.43 Discriminatory admission policies, inadequate educational backgrounds, and lack of financial resources restricted access to law school, and the small number of lawyers of color restricted opportunities for apprenticeships. At the turn of the 20th century, there were only about 730 black lawyers in the entire country.44 Once admitted to the bar, minority lawyers faced continued resistance from potential employers and clients. Few firms were willing to hire lawyers of color, and African Americans who could afford the services of an attorney often hired whites, who were assumed to function more effectively in a racist legal system.
Barriers to women of color were especially great. Access to higher educational and professional programs was extremely limited, and the few institutions that did not discriminate on the basis of race often did so on the basis of sex. Charlotte Ray, one of the first black women to graduate from law school (Howard, 1873), gained admittance by using her initials rather than first name on application papers. After an unsuccessful struggle to obtain legal work, she returned to her earlier career of teaching in public schools. Between 1875 and 1925, no more than twenty-five black women were reportedly practicing law. By 1940, the number had only doubled.45
In 1890, when the census first began classifying by race, black lawyers constituted under 0.5 percent of the profession; in 1960 they were slightly over 1 percent. Not until the late 1940s was an African American appointed to the federal bench or to the full-time faculty of a non-minority law school.46 Although the Supreme Court held racially segregated legal education unconstitutional in 1950, it took the Civil Rights movement of the 1960s to bring major changes. And even then, in 1968, only about 3 percent of law students were black, Latino, or Native American.47 Then, with affirmative action and financial aid initiatives, the numbers increased; by 2019, students of color constituted about one-fifth of law school graduates. Despite such progress, substantial challenges remain.
The same is true for LGBTQ lawyers, whose history in the legal profession paralleled their experience in society generally. Until the late 1960s, criminal prohibitions on homosexual conduct and cultural 26assumptions about sexual “deviance” inhibited public expression of gay and lesbian identity. Individuals whose non-heterosexual practices became known suffered substantial sanctions, including pervasive discrimination in employment. Law was no exception, although the closeted nature of most homosexual practices presented few occasions for bar pronouncements. During the 1950s and 1960s, there were only three reported judicial cases concerning the denial of professional licenses to gays and lesbians, and only one involved an attorney. In 1955, Harris Kimball, a Florida civil rights attorney, was disbarred after being convicted of having sexual relations with another man on an Orlando beach.48
Beginning in the 1970s, the growth of the gay rights movement contributed to substantial changes. Partly in response to such activism, as well as to new research and new interpretations of prior research, in 1973, the American Psychiatric Association removed homosexuality from its list of mental illnesses. Legal challenges to discrimination based on sexual orientation also began to achieve limited success, including in the legal profession. In 1973, on a petition from Harris Kimball, the New York Court of Appeals became the first state to hold that homosexuality was not a ground for exclusion from the bar.49 A series of bar admission cases in Florida subsequently prompted its supreme court to limit moral character scrutiny to inquiries bearing a “rational relationship to fitness for legal practice,” and to determine that private noncommercial sexual acts between consenting adults bore no such relationship.50 And, beginning in the late 1970s, a number of organizations, including the National Lesbian and Gay Lawyers Association, formed to provide support networks and press for changes on issues involving sexual orientation. Still, until relatively recently, a common attitude was that expressed by one legal employer in a Los Angeles bar survey about gay and lesbian attorneys in the mid-1990s: “Don’t have any. Don’t want any.”51
The legal profession has a substantial stake in increasing diversity and inclusion and a growing number of bar leaders recognize as much. Indeed, in one recent survey of managing partners and general counsel, participants stressed that diversity was not just the “right thing to do,” but was also critical to organizations’ economic success. As one put it, “A 27diverse team is a more effective team: it has a broader base of experience . . . and the client gets a better product.” Another agreed. “We’re in the human capital business. [Diversity is a way to get] the best people and the best decisionmaking.”52
Research on the business case for diversity generally distinguishes between “cognitive diversity,” which refers to differences in information, knowledge, perspectives, and mental models, and “identity diversity,” which refers to differences in race, gender, age, ethnicity, religion, physical qualities, and sexual orientation.53 Although logically distinct, these two forms of diversity are related because our identities influence what we know, how we perceive events, and how we think.54 Because of that relationship, identity diversity generally leads to better outcomes in non-routine cognitive tasks such as problem solving, predicting and innovating. Researchers find that “even if the person who looks ‘different’ does not bring any new cognitive differences to the table, his or her mere presence has been shown to change the behavior of the group’s members. People work harder in identity-diverse environments than they do in homogenous environments.”55 Insular cultures have a harder time recognizing the need for change. They tend to resist insights of outsiders and don’t learn and adapt.56 Homogeneity triggers expectations of similarity and less welcoming receptions for different opinions. Diverse groups are more accepting of alternative viewpoints, more willing to reexamine facts and assumptions, and more likely to foster persistent voicing of dissenting perspectives.57 People anticipating a homogeneous environment also prepare less thoroughly than those anticipating a diverse interaction.58
1.Although the business case for diversity is widely accepted in principle, diversity is often marginalized in practice. Part of the reason may be that findings on its impact are not uniformly favorable. Not all social science research reflects strong, bottom-line benefits from diversity. If poorly managed, diversity can heighten conflict, discomfort, and communication problems, or cause outsiders to suppress divergent views.59 The diversity 28bonus tends not to materialize for tasks where familiarity, trust, and shared understandings are especially critical.60 Nor do all studies find a correlation between diversity and profitability.61 In those that do, it is unclear which way causation runs. It may well be that financial success sometimes enhances diversity rather than the converse. Organizations that are on strong financial footing are better able to invest in diversity initiatives or have sound employment practices that promote both diversity and profitability.62
2.Some believe that, even if diversity has quantifiable advantages in enhancing decisionmaking, the benefits need to be weighed against the adverse effects of “lowering” standards and provoking backlash based on “identity politics” and “special” treatment.”63 In a study by the Minority Corporate Counsel Association, many white men agreed that “diversity should take a back seat to performance and capability.”64 In their view, too much “reverse discrimination” causes resentment, and “stretch hires of minorities who are not qualified sometimes does much to undermine . . . acceptance of diversity and inclusion.”65 As one participant put it, “Taking opportunities . . . from those with merit and giving [them] . . . to people based upon race, gender, or sexual identity is forcing us apart not bringing us together. . . . I can think of few things worse for an ostensibly color blind and meritocratic society.”66 How would you respond to these concerns?
3.By contrast, supporters of diversity initiatives, relying on research summarized below, argue that they are necessary to counteract unconscious biases that limit opportunities for qualified women and minorities. Pretending that we already live in a strictly meritocratic society will not bring us closer to achieving one. Advocates of diversity also point out that it promotes effective leadership by ensuring difference in backgrounds and perspectives, and by enhancing the quality and legitimacy of decisionmaking processes.67 They also note that leaders in today’s multicultural society need “cultural competence”: the ability to understand differences arising from diverse backgrounds and experiences and to adjust their own actions 29accordingly.68 Do you think that it is particularly important for lawyers to display cultural competence? Why or why not?
Although the legal profession has made major efforts to improve diversity and inclusion over the last half century, women and lawyers of color still confront substantial obstacles. Women now constitute close to half of law school graduates, but remain underrepresented in leadership, partner, and trial counsel positions.69 The American Bar Foundation’s longitudinal survey of 5000 lawyers, AJD3, found that about half of women and two-thirds of men in law firms were partners. Of the partners, about two-thirds of men and half of women were equity partners. In the private sector, the gender gap in income was 20 percent.70 In other more recent studies, the gender gap in pay at large firms was 53 percent, which has increased in recent years and which experts attribute primarily to differences in rainmaking and skill in taking credit for rainmaking.71
Perceptions of the problem vary by gender. Sixty percent of women in law firms, compared with 14 percent of men, think that gender will limit their advancement opportunities, and less than half of women, compared with two-thirds of men, think that firms are doing what it takes to improve gender diversity.72 Only 11 percent of male partners, compared with 67 percent of female partners, believe there is a gender pay gap.73
Although African Americans, Latinos, Asian Americans, and multiracial Americans now constitute over a third of the population, they constitute only 15 percent of the profession.74 Persons of color have accounted for 20 to 30 percent of law school graduates over the last decade, and a quarter of law firm associates, but they comprise only 9 percent of law firm partners.75 Women of color, who account for 14 30percent of associates, hold only 3 percent of partnerships.76 About 3 percent of lawyers in the United States identify as LGBTQ, a figure slightly lower than in nation’s total adult population, which is estimated at 4.5 percent.77 In law firms, lawyers that identify as LGBTQ account for about 4 percent of associates and 2 percent of partners.78
The barriers confronting women, LGBTQ lawyers, and lawyers of color have overlapping but also distinctive explanations. All groups encounter unconscious bias and stereotypes, devaluation of competence, special scrutiny that accompanies token status, exclusion from informal networks of advice and assistance, lack of quality assignments, and a paucity of mentors and role models. Explanations for racial and ethnic inequalities also include class barriers. Together with racial bias, these barriers diminish minorities’ aspirations and opportunities to enter law school and constrain their performance and advancement once they graduate.79 In addition, barriers of race and ethnicity intersect with barriers of class and sexual orientation. As the materials in Chapter 16 reflect, racial minorities’ underrepresentation in the law school applicant pool is partly attributable to inadequate financial resources and educational preparation. These factors limit the talent pool of lawyers of color.
The case for diversity and explanations for current inequalities are explored in the excerpt and notes below. Subsequent discussion will focus on strategies that can best address the barriers to diversity that remain.
Deborah L. Rhode, Women in Leadership
77–79 (2016)
Women are less likely to make partner even controlling for other factors, including law school grades and time spent out of the work force or on part-time schedules. Studies find that men are two to five times more likely to make partner than women. Even women who never take time out of the labor force and who work long hours have a lower chance of partnership than similarly situated men. The situation is bleakest at the highest levels. Only 12 percent of chairs and managing partners at the largest 100 firms are female. . . . Gender disparities are similarly apparent in compensation, with minority women at the bottom of the financial pecking order. Those differences persist even after controlling for factors such as productivity and differences in equity/non-equity status. So too, although female lawyers report about the same overall 31career satisfaction as their male colleagues, women experience greater dissatisfaction with key dimensions of practice such as level of responsibility, recognition for work, and chances for advancement. . . .
[These gender disparities are] commonly explained in terms not of credentials but of commitment and client development. Because women continue to have disproportionate family responsibilities and are more likely to reduce their schedules or to take time out of the workplace than men, they are assumed to be less available, less dependable, and less worthy of extensive mentoring. In one survey, although women and men reported working similar hours, more than a quarter of male lawyers thought their female counterparts worked less and a fifth rated the number of hours these women worked as “fair to poor.” So too, women are often presumed to be less adept in business development and in the self-promotional abilities that underlie it. . . .
Gender stereotypes play a well-documented, often unconscious, role in American culture, and legal workplaces are no exception. . . . In national surveys, between a third and three-quarters of female lawyers believe that they are held to higher standards than their colleagues. Studies of performance evaluations find some support for those perceptions; they find that similar descriptions of performance result in lower ratings for women than men. Male achievements are more likely to be attributed to capabilities, and female achievements to external factors . . . .
Women, particularly women of color, also receive less latitude for mistakes. As one African American attorney put it, “there is no room for error.” That, in turn, may make lawyers reluctant to seek risky “stretch assignments” that would demonstrate outstanding capabilities. Biased assumptions about lawyers’ commitment or competence can also affect the allocation of work. As Joan Williams and Veta Richardson note, the result is to prevent women and minorities from getting opportunities that would demonstrate or enhance their capabilities, which creates a cycle of self-fulfilling prophecies . . . .
So too, mothers, even those working full-time, are assumed to be less available and committed, an assumption not made about fathers. In one representative study, almost three-quarters of female lawyers reported that their career commitment had been questioned when they gave birth or adopted a child. Only 9 percent of their white male colleagues, and 15 percent of minority male colleagues, had faced similar challenges. . . .
Women are also rated lower than men on qualities associated with leadership, such as assertiveness, competitiveness, and business development. And . . . when women do display assertiveness, it is often penalized. Female lawyers risk seeming too feminine or not feminine enough. Either they may appear too “soft” or too “strident—either unable to make tough decisions or too pushy and arrogant to command respect. . . . Even the most accomplished lawyers can encounter such 32biases. Brooksley Born, now widely acclaimed for her efforts to regulate high-risk derivatives while chair of the Commodity Futures Trading Commission, was dismissed at the time as “abrasive,” “strident” and a “lightweight wacko.” . . .
A related set of obstacles involves in-group favoritism. . . . In ABA research, 62 percent of women of color and 60 percent of white women, but only 4 percent of white men, felt excluded from formal and informal networking opportunities; most women and minorities would have liked better mentoring. . . .
In-group favoritism is also apparent in the allocation of work and client development opportunities. Many organizations operate with informal systems that channel seemingly talented junior lawyers (disproportionately white men), to leadership tracks, while relegating others to “workhorse” positions. In the ABA Commission study, 44 percent of women of color, 39 percent of white women, and 25 percent of minority men reported being passed over for desirable assignments; only 2 percent of white men noted similar experiences. . . .
Escalating workplace demands and inflexible workplace structures pose further obstacles to gender equity . . . Although more than 90 percent of American law firms report policies permitting part-time work, only about 6 percent of lawyers actually use them. Many lawyers believe, with good reason, that any reduction in hours or availability would jeopardize their careers. Part-time status and time out of the workforce generally result in long-term losses in earnings as well as lower chances for partnership. In one survey of University of Michigan law school graduates, just a single year out of the workforce correlated with a third lower chances of making partner and an earnings reduction of 38 percent . . . . All too common are stories of the “faster than a speeding bullet” maternity leave or women in hospital delivery rooms drafting documents while timing contractions. If you’re billing at 6 minute intervals, why waste one? Those who opt for a reduced schedule after parental leave often find that it isn’t worth the price. Their schedules aren’t respected, their hours creep up, the quality of their assignments goes down, their pay is not proportional, and they are stigmatized as “slackers” . . . .
Although work-family conflicts are not only “women’s issues,” women suffer the greatest cost. . . . Despite a significant increase in men’s domestic work over the last two decades, women continue to shoulder the major burden. It is still women who are most likely to get the phone call that federal district judge Nancy Gertner received on the first day that she was about to ascend the bench: “Mama, there’s no chocolate pudding in my [lunch].” And it was a mother, not her equally busy husband, who heard from her resentful child, “I want to be a client when I grow up.” In the American Bar Foundation’s survey of young lawyers, women were about seven times more likely than men to be working part-time or to be out of the labor force, primarily due to childcare. . . .
331.Sexual harassment imposes other gender-related obstacles to success in the legal profession. Studies find that about 25 percent of women, 7 percent of white men, and 11 percent of men of color have reported encountering conduct including “unwanted sexual comments, physical contact, and/or romantic advances.”80 The vast majority of this conduct goes unreported because victims fear retaliation, humiliation, and informal blacklisting, or because they doubt that any meaningful response will be forthcoming.81 Even when legal employers do impose sanctions or terminate the offender, they often do not disclose that fact publicly, which enables serial abusers to avoid exposure.82 Although firms may ask about complaints when hiring laterally, many do not vet the answers or ask for references in order to avoid alerting competitors that one of their attorneys is being recruited.
A case in point involves James Tanenbaum, a senior partner who was forced to leave Morrison & Foerster after an internal finding of multiple instances of sexual harassment. The press release announcing his departure reported only that “Mayer Brown has lured a large capital markets team from Morrison & Foerster.” 83 Lawyers at Mayer Brown knew nothing of the harassment allegations until the firm began receiving calls and a bouquet of flowers with an accompanying note that read: “Thanks for taking him,” and was signed, “The women.” 84
2.Gender disparities are attracting increasing numbers of discrimination lawsuits.85 Most of these suits target pay equity issues, but some focus on other forms of bias, including disparate treatment of mothers and pregnant women.86 In a rare case involving a male plaintiff, a new father sued, claiming that his firm engaged in sex discrimination by treating male caregivers differently than female caregivers, and that the firm retaliated against him for taking the full parental leave guaranteed by federal statute. He alleged that, after he returned from leave, partners withheld work, and that the firm had a “macho culture,” in which associates bragged about how little time they spent on family obligations. The court granted the firm 34summary judgment on the discrimination claim on the ground that the plaintiff “offered no evidence that his termination for low billable hours was actually a pretext for terminating him because he was a male who was also a caregiver.” The trial judge held, however, that there was a triable issue of fact on whether low billable hours was a pretext for retaliation.87
3.What explains racial and ethnic bias? Explanations proceed on several levels. One framework stresses the historical, socioeconomic and political forces that help determine when and which groups become targets of subordination. According to some theorists, social and economic dislocation that generates widespread anxiety often triggers a search for scapegoats. So too, groups that have achieved dominance generally seek to legitimize their position by magnifying group differences.88 Early socialization processes leave individuals with images, assumptions, and expectations that inhibit later efforts to build cross-racial relationships of comfort and equality.89
Other explanations, informed by cognitive psychology, stress the role of social categories in perpetrating racial stereotypes. Individuals’ needs to simplify experience, to maintain group affiliations, and to believe in a “just world” often result in assigning characteristics to subordinate groups that explain their subordination. Most people want to assume that life follows orderly, predictable, and equitable patterns in which everyone gets what they deserve and deserves what they get. To sustain this view, people will often adjust their evaluations of merit to justify existing inequalities. 90 Because individuals are largely unaware of their biases, researchers have developed tests of implicit attitudes, some of which are available online. Such tests find, for example, that both white and black subjects more readily associate positive words and images with whites than blacks; the association is strong for white survey participants, and weak for blacks. This pattern is consistent with other laboratory studies finding that black students show explicit attitudes that are strongly favorable to their own racial group, but implicit associations that are not. Such findings reflect the strength of racial stereotypes even among individuals whose conscious beliefs are to the contrary. 91 This research suggests that one reason racism is so difficult to eradicate is that racial categorization and stereotypes are learned at early ages largely through tacit rather than explicit instruction. These biases are then perpetuated through selective perception of information that confirms them. 92
35The problem is compounded by our discomfort with acknowledging and addressing racial and ethnic bias. Because most Americans are taught at early ages that racial biases are unjust, our tendency is to deny that we have them, which “ensures that we won’t examine and change them.” 93 Those who are most convinced that they are objective are the most likely to engage in bias because they fail to monitor their behavior. 94 Whites who equate racism with intentional discrimination also often discount the structural social, economic and political factors that perpetuate inequality—and ignoring those factors leads to backlash against corrective efforts, which seem like “reverse racism.” 95
4. Two recent studies document the persistence of unconscious bias in the legal profession. One involved adult volunteers who evaluated Asian American and white male attorneys’ performance at simulated depositions. All of the volunteers heard the same recording of the deposition, but at the beginning they were shown photographs and names of the fictitious attorneys taking the depositions. Half the volunteers saw a white attorney named William Cole, and half saw an Asian American attorney named Sung Chang. After listening to the deposition, participants rated the deposition performance. Individuals who claimed that they themselves did not hold racial stereotypes about the ideal litigator but thought that most Americans held those stereotypes, gave lower ratings of competence and likeability to the Asian American litigator and were also less willing to hire Sung Chang or recommend him to friends and family. 96 That finding is consistent with other studies documenting stereotypes of Asian American attorneys as less forceful and confident, which decrease their opportunities for mentoring and quality assignments. 97
Another study by a consulting firm demonstrated similar bias. The study’s authors inserted twenty-two errors in a legal memo, ranging from minor spelling and grammatical errors, to errors of fact and analysis. Sixty law firm partners received copies of the memos, which they were told was a “writing analysis study.” Half the partners were told that the author was an African American named Thomas Meyer; the other half were told that that the writer was a white man named Thomas Meyer. The reviewers gave the memo attributed to the white man a rating of 4.1 on a scale of 5, and a rating to the African American of 3.2. While the white man received praise for his potential and analytical skills, the African American was said to be average at best and in need of “lots of work.”98
365.Recent years have also witnessed increased attention to women’s opportunities, not just within the profession generally, but also specifically within the courtroom specifically. Researchers have documented striking and stubborn patterns of women’s underrepresentation as first chairs at trial and in speaking roles in litigation proceedings. For example, one study by the ABA Commission on Women in the Profession, based on a random sample of 600 civil and criminal cases, revealed that:
[W]omen are consistently underrepresented in lead counsel positions and in the role of trial attorney . . . . In civil cases, men are three times more likely than women to appear as lead counsel . . . . That substantial gender gap is a marked departure from what we expected based on the distribution of men and women appearing generally in the federal cases we examined (a roughly 2 to 1 ratio) and the distribution of men and women in the legal profession generally (again, a roughly 2 to 1 ratio).99
A recent report by the New York State Bar Association found much the same. In New York, women were the lead lawyers for private parties barely 20 percent of the time.100 These studies, coupled with her own experience, led U.S. District Court Judge Shira A. Scheindlin to pen a recent op-ed in the New York Times. There, she wrote:
As a Federal District Court judge in New York, I often encountered this courtroom scene: A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold.
In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role—even though women have made up about half of law school graduates since the early 1990s.101
6. Recent systematic research on barriers for LBTQ lawyers is lacking, but some fragmentary evidence suggests that obstacles persist, particularly outside major metropolitan areas. As the Deputy Program Officer of the National LGBT Bar Association and Foundation notes, even workplaces “with a culture of inclusivity can have hiring partners on staff who are 37homophobic or transphobic.”102 Anecdotal accounts suggest that obstacles may be particularly pronounced for transgender attorneys and LGBTQ lawyers of color, and greatest when they are seeking leadership positions.103
In December 2018, Paul Weiss, one of the nation’s most prominent law firms posted photos of twelve smiling lawyers with the message that it was “proud to announce” its new partner class.104 The smiles didn’t last. All the new partners were white, all but one was male, and the post went viral. What made it a lightning rod for pent up frustration about diversity was not simply the composition of the class: Many Wall Street firms’ records were far worse.105 Rather, it was the firm’s seeming failure to recognize its problem and anticipate the likely response. The firm’s Chair, Brad Karp, promptly issued a statement indicating that the demographic pool for 2018 partners was “idiosyncratic,” and promised that “we certainly can—and will—do better. There is no more important issue to [this firm’s leadership] than diversity.”106 He also predicted that the firm would shortly hire more minority partners laterally, and that diversity efforts would receive greater attention in compensation decisions.
Media followup revealed a mixed picture. Although Paul Weiss’s partnership is more diverse than the vast majority of its large firm peers, that is a fairly low standard. Interviews with current and former lawyers at the firms suggested that many feel that the landscape is far from equal. Some felt that women and lawyers of color were held to more exacting standards, punished more severely for mistakes, and given less professional and client development opportunities.107 Promotion rates were consistent with those claims. White men account for only about 40 percent of incoming associates, but 70 percent of new partners over the past decade.108
a)Not all Americans are troubled by those disparities, although most are reluctant to express their views openly. One exception was the author of a letter to the editor of the New York Times in response to its profile of Paul Weiss. He wrote:
Perhaps I am being naive, but why does diversity have to be the primary yardstick in our society for every decision 38involving the selection of human beings for elevated positions? There are times when ability should outweigh diversity . . . . In this case, Paul Weiss already had an excellent record when it came to diversity, but it is a law firm in the business of winning cases for its clients. Paul, Weiss did not deserve this pubic shaming because in this one instance the two metrics of diversity and ability were not in sync . . . . Clients do not want their attorneys to fight the good fight [on social issues]; they want them to win. Putting diversity ahead of ability can be a self-defeating proposition for the firm—and the client.”109
How would you respond?
b)Many clients saw Paul Weiss’s partnership class as emblematic of broader challenges. After its post went viral, the chief legal officers of more than 170 companies signed an open letter to law firms stating:
We expect the outside law firms we retain to reflect the diversity of the legal community and the companies and the customers we serve. . . . We are disappointed to see that many law firms continue to promote partners classes that in no way reflect the demographic composition of entering associate classes. Partnership classes remain largely male and largely white. . . . We are left to wonder if you and your partners value diversity enough to put into place programs to develop, promote, and retain talented and diverse attorneys. . . . We, as a group, will direct our substantial outside counsel spend to those firms that manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation. We sincerely hope that you and your firm will be among those that demonstrate this commitment.110
c)The American Lawyer, which ran a copy of the Open Letter, also ran a response from a Haitian partner who was skeptical of the effort.
These signatory letters have been more public relations than actual practice. . . . Ask yourselves how many of these same GCs take any real measures to diversify the lawyers they hire on the meaningful matters. Very few do. . . . To be clear, my goal in penning this letter is not to ascribe blame or solicit work from GCs. My goal is to voice the frustration of dozens of racially diverse lawyers like me, who are quite frankly tired of these types of letters and pronouncements leading to no meaningful advancement.”111
39If you were one of the general counsel who signed the letter, how would you respond? If you were the chair of another Wall Street firm with a similar new partner class, what steps would you take?112
Paul Barrett’s profile, The Good Black, provides a case history of the profession’s difficulties in addressing diversity-related issues. It chronicles the efforts of Lawrence Mungen, an African American graduate of Harvard College and Harvard Law School, to fit the ideal that Barrett’s title invokes. As a senior associate, Mungen joined the Washington, D.C. branch office of a Chicago law firm, Katten, Muchen and Zavis, and attempted to “play by the rules.” After being hired to do complex bankruptcy work in an office that generated too little of it, he fell through the cracks and off the partnership track. But until late in the process, Mungen failed to complain or to raise race-related concerns. He didn’t want to be typecast as the “angry black,” and he declined to support or mentor any of the small number of other minority lawyers at the firm.
When his difficulty in obtaining work became clear, some partners made a few well-meaning but ineffectual responses. They slashed his billing rate, which enabled him to take over some routine matters, but also undermined his reputation as someone capable of demanding, partnership-caliber work. Although the senior partners eventually offered to relocate him to another office, they did not provide assurances of opportunities that would lead to promotion. He sued for race discrimination and alleged multiple examples, such as the firm’s failure to provide formal evaluations, informal mentoring, invitations to client meetings, or help with business development. A largely black District of Columbia jury found in his favor, but a divided appellate panel reversed. Unable to find another comparable position, Mungen made do with temporary, low-level assignments at other firms and, by the end of the book, was contemplating an alternative career.
As many commentators have noted, the case was a kind of “racial Rorschach test” in which observers saw what they expected to see. To lawyers in the firm and sympathizers outside it, including the appellate court, this was a morality play in which no good deed went unpunished. From their perspective, Mungen was treated no worse than white associates, and in some respects, considerably better. The slights and oversights that he alleged at trial were “business as usual mismanagement.” And the extra efforts that the firm made to keep Mungen were evidence of a commitment to equal opportunity. By contrast, critics, including Barrett, saw Mungen’s story as a textbook case of “a reckless indifferent affirmative action.” From their vantage, the firm’s efforts were too little too late. Unsurprisingly, these competing 40perceptions usually divided along racial lines and typified attitudes within the profession generally. In an ABA survey around the time, only 8 percent of black lawyers, but 41 percent of whites, believed that firms had a genuine commitment to diversity.113
Much, of course, depends on what counts as commitment. Katten’s management, like that at many firms, undoubtedly did want lawyers of color to succeed. Even from a purely pragmatic standpoint, it helps in recruitment and business development if a firm includes more than the single black lawyer that Katten’s Washington office had during Mungen’s employment. But while many attorneys want to achieve greater diversity, they do not necessarily want to rethink the structures that get in the way.
a)What would you have advised if you had been the managing partner at Katten? Would you have settled the lawsuit? Instituted other major changes in the firms retention and evaluation processes?
b)Related issues arose in Aaron Charney’s highly publicized lawsuit against Sullivan and Cromwell charging discrimination based on sexual orientation.115 Charney’s complaint cited evidence of what he took to be homophobic comments and retaliation. In defense of the firm’s reputation, one partner suggested that the lawyer who had made the offensive remarks was “equal opportunity rude and nasty.” Eleven openly gay partners issued a public statement rejecting any suggestion that the firm fostered a hostile environment. Charney’s response was: “It’s totally unclear to me how somebody who has never met me could suggest that because we sit in the same building and he’s in an environment that he’s happy in, that that is any way reflective of what’s happening in my environment.”115
How would you have responded if you were on the firm’s management committee? Should firms do more to sanction “equal opportunity offenders?”
The ABA’s Presidential Initiative Commission on Diversity and the Commission on Women in the Profession, together with other experts in the field, have issued a broad set of recommendations to promote diversity and inclusion within the profession. These efforts focus on increasing accountability and challenging bias. 116 For example, employers should intensify their efforts in hiring, retaining, and promoting lawyers of color. In particular, employers should reassess evaluation procedures and criteria that have a disproportionate racial 41 impact. Recruiters should make greater contact with law schools that have substantial minority enrollments, either through onsite interviews or letters to minority student associations and visits to regional minority placement conferences. Hiring standards should avoid excessive reliance on first-year grades, LSAT scores, and law review experience, which disproportionately exclude students of color and do not measure the full range of skills that are necessary for successful practice. After reviewing research on lawyer effectiveness, Bill Henderson concludes that “academic factors are not very reliable proxies for future lawyering potential.” 117 Other metrics, including some standard personal questionnaires and tailored structured interviews, are better at assessing factors such as achievement motivation and self-discipline, which are more valid predictors of workplace performance. Women and minorities do as well or better than their male or white counterparts on these measures. 118
Employers should also review their evaluation, mentoring, and compensation procedures to assess their impact on underrepresented groups. Early opportunities for quality assignments, feedback, and mentors, and sponsors make a critical difference in professional development, and proactive efforts are often necessary to ensure that these opportunities are equally available.119 Promotion criteria such as collegiality and ability to attract client business need to account for the special obstacles facing women and lawyers of color. Providing adequate opportunities for supervisory experiences, client contact, and transfer of client business should be key priorities. Work/family policies should ensure access to flexible and reduced schedules without career costs. Mentoring, training, and affinity groups focused on the needs of LGBTQ lawyers are also critical, as is support for pro bono work around issues of sexual orientation, and monitoring of initiatives to ensure that they are in fact securing an inclusive culture.120 Compensation systems should be evaluated to prevent systematic gender bias in the allocation of credit for originating business and evaluating performance.
National, state, and local bar organizations have also attempted to expand access to the bar by underrepresented groups. Strategies have included increased recruitment of talented minority high school and college students, greater financial assistance for disadvantaged students, more support for outreach and educational preparation programs by groups like the Council on Legal Educational Opportunities, and additional initiatives that assist minority graduates to pass the bar.
42Over the last two decades, a growing number of corporate counsel agreed to “end or limit relationships with firms whose performance consistently indicated a lack of meaningful interest in being diverse.” 121 However, the response to the Paul Weiss matter suggests that more pressure may be forthcoming.
1.Which of the strategies strike you as the most promising? Which strike you as mere window-dressing?
2.Under what, if any circumstances, do you believe that government and in-house legal departments should withhold business from firms for insufficient diversity? Is there a downside to such pressure if it results in channeling women and attorneys of color to matters where their presence is needed for appearances rather than expertise or interest?
3.As you consider the question above, note the dilemma of the only black partner in a prominent San Francisco firm who was asked to help solicit a new client whose general counsel was black. The client’s legal needs were not in an area where she had substantive expertise, although a colleague pointed out that she had worked for the Department of Transportation while a law student and the client’s business was shipping. But business was slow and she felt enormous pressure to respond as she did. “No problem. . . . You know I’m always willing to help with anything that will be good for the firm.” She later regretted the decision. At the meeting when her colleague “made the pitch about the firm’s relevant expertise, none of which I possessed, it was clear that the only reason I was there was to tout the firm’s diversity, which was practically nonexistent. In that moment, I wanted to fling myself through the plate glass window of that well-appointed conference room overlooking the port of Oakland.”122 Would you have felt the same? What would you have done in her position? What factors would have influenced your decision?
4.In an effort to address in-court disparities, U.S. District Judge Jack B. Weinstein has recently issued new rules to govern his courtroom. One states that “junior members of legal teams” are “invited to argue motions they have helped prepare and to question witnesses with whom they have worked.” Judge Weinstein further notes that he is “amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate” and clarifies that the rule was prompted by “studies of underrepresentation of female attorneys and minorities.”123 What is your view of Judge Weinstein’s approach? Are there other strategies that you believe might be more successful? What might explain women’s persistent underrepresentation at trial?
435.Another strategy law firms have embraced is the Mansfield Rule, patterned after the Rooney Rule in professional football. Named after Arabella Mansfield, the first woman admitted to the American bar in 1869, the rule requires that firms consider diverse candidates for at least 30 percent of open leadership and governance roles.124 Do you believe that legal employers should adopt the Mansfield rule? Why or why not?
6.Should legal employers provide the same parental leave to lawyers regardless of gender and regardless of whether they are the primary caretaker? Even where leaves are equally available, male lawyers often feel informal pressure not to use them.125 In the workplace generally, surveys find that about 40 percent of male employees use less than half of the leave available, compared with 13 percent of female employees.126 And half of working fathers, compared with 26 percent of working mothers, feel that they spend too little time with their children.127 How should legal employers respond?
5.Professional Conduct Rules on Harassment or Discrimination
In 2016, the ABA adopted a new subsection to Rule 8.4. As amended, Rule 8.4(g) provides:
It is professional misconduct for a lawyer to . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation.
As of December 2019, only two jurisdictions had adopted that rule, although about half had some anti-discriminatory language in their rule or comments.128
Rule 8.4’s revision reflects a quarter century of efforts to obtain an explicit antidiscrimination prohibition. The ABA rejected efforts in 1992 and 1994, and, in 1998, it enacted a compromise provision in the Comments that stated:
[3]A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice 44based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [the Rule] when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate [the Rule]. A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
However, as an ABA Report accompanying the 2016 Rule change noted, many lawyers viewed this Comment as inadequate because it did not have the same authority as a Rule and applied only to conduct occurring in the course of representing a client that was prejudicial to the administration of justice.129 The new Rule 8.4(g) is broader. It extends protection to three new categories: ethnicity, marital status and gender identity. Furthermore, a new Comment 3 defines “harassment” to include “derogatory or demeaning verbal or physical conduct,” while a new Comment 4 provides:
[4]Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and other while engaged in the practice of law; operating or managing a law firm or law practice, and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule, by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.
Although Rule 8.4(g) passed by voice vote in the ABA House of Delegates, and no one spoke in opposition, there were considerable concerns expressed in writing, especially in states that considered adoption. Many of these reservations centered on First Amendment concerns. For example, the Texas Attorney General maintained that Rule 8.4(g) “would severely restrict attorney’s ability to engage in meaningful debate on a range of important social and political issues,” including illegal immigration, same-sex marriage, or bathroom usage, and would suppress “thoughtful and complete exchanges about these complex issues.”130 Professor Eugene Volokh, in a letter to the Arizona Supreme Court, agreed and claimed that Rule 8.4(g) would “turn ordinary employment disputes into disciplinary matters,” and enable disgruntled employees to “use the express or implied threat of a bar complaint as leverage to favorably settle even a meritless lawsuit.”131
Others, meanwhile, insist that Rule 8.4(g) violates the First Amendment on the theory that it imposes content-based restrictions on 45lawyers’ speech. These concerns increased after two recent U.S. Supreme Court decisions. In National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018), the Court held that government restrictions on professionals’ speech are generally subject to strict scrutiny. To survive such scrutiny, the restrictions must be narrowly tailored to serve compelling state interests. In Matal v. Tam, 137 S. Ct. 1744 (2017), the Court struck down a longstanding federal trademark statute that allowed government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons because, in the Court’s view, the statute reflected viewpoint discrimination against offensive speech.
By contrast, other critics argue that Rule 8.4(g) is likely to have little effect. As they note, disciplinary action is rare in states that have long had professional rules that prohibit discrimination.132 Indeed, the ABA Report supporting adoption of 8.4(g) attempted to allay concerns that it would impose an “undue burden” on lawyers by noting that jurisdictions with “antidiscrimination and antiharassment provisions have not seen a surge of complaints based on these provisions.”133 One reason, critics suggest, is that the rules do not include prohibitions against retaliation.134 Another is that most of the barriers to full equality for groups singled out by the Rule have little to do with the kinds of explicit bias that it targets. Rather, the problems involve structural discrimination, unconscious bias and in-group favoritism, and unresponsiveness to work/life conflicts.135
An opponent of Rule 8.4(g) offered the following hypothetical:
One lawyer tells another, at the water cooler or a bar association meeting on tax reform, “I abhor the idle rich. We should raise capital gains taxes.”. . . . [T]he other lawyer responds “you are just saying that because you’re a short, fat, hillbilly, neo Nazi.”136
a)Has either lawyer violated Rule 8.4(g)? If so, and if you were a member of the governing bar disciplinary body, what sanctions would you impose? If you were a judge reviewing the constitutionality of the Rule as applied to that situation, what would conclude?
b)In response to such hypotheticals, some commentators have argued that underfunded bar disciplinary authorities are extremely 46unlikely to pursue such complaints, particularly given the constitutional issues that would arise. And even if they did, “we as a profession . . . have the capacity to deal with occasional abuses.”137 Others respond that disciplinary authorities would have to call for a response and that, even if they do not impose discipline, “the process will be the punishment.”138 Do you agree? If you were a member of the State Supreme Court, would you vote to adopt Model Rule 8.4(g) as written? If not, is there a modified rule that you would support?
c)Would an aspirational provision, such as in the Rule governing pro bono work, be preferable to Rule 8.4(g)?139 Professor Veronica Root argues that it would, because it would solve the constitutional problem while serving an “expressive function” that could shame offenders.140 What is your view? Which would more effectively change social norms, a broad non-binding provision, or a narrow mandatory prohibition?
d)What other strategies might be most useful to reduce bias and enhance inclusivity in the legal profession? More support for complainants? Online anonymous surveys? Pressure from law students?
Reference: Rule 8.4(g).
Lawyer well-being is a legal ethics issue because stress, mental health difficulties, and substance abuse are major contributors to disciplinary and performance problems.141 The following excerpt identifies major concerns.
Deborah L. Rhode, “Preparing Leaders: The Evolution of a Field and the Conditions and Stress of Leadership”
58 Santa Clara Law Review 411 (2019).
In the summer of 2017, many in the legal and leadership community read with shock a front page article in the Sunday New York Times business section. The author, Eilene Zimmerman, movingly described the death of her ex-husband, Peter, from an infection related to drug abuse. 47Peter Zimmerman was a leading partner at a leading Silicon Valley law firm who, for several years, had exhibited signs of serious ill health and substance abuse. It is, of course no secret that many highly successful lawyers suffer from such problems. But what the article brought home is just how serious and tragic their difficulties may be when others look away, or fail to look at all. Eilene Zimmerman writes:
Of all the heartbreaking details of his story, the one that continues to haunt me is this: The history on his cellphone shows the last call he ever made was for work. Peer, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.
. . . . Peter Zimmerman’s case is all too typical. The most comprehensive recent study of lawyers and substance abuse . . . was cosponsored by the American Bar Association and Hazelden Foundation. Based on responses from almost 13,000 attorneys, it found that about a fifth of lawyers (21 percent) qualify as problem drinkers and suffer from anxiety (19 percent), and over a quarter struggle with mild or more serious depression (28 percent). Figures on drug use are unreliable because three-quarters of the survey participants declined to answer . . . .
The limited research available also suggests that lawyers report almost three times the rate of depression and almost twice the rate of substance abuse as other Americans. Law ranks among the top five careers for suicide. Primary reasons for legal professionals’ particular vulnerability . . . . [involve stresses of practice that] set lawyers up for an array of health-related concerns. . . . For lawyers in firms, billable hours have sharply escalated, and what has not changed is the number of hours in the day. Law is the nation’s second most sleep deprived occupation, which escalates the risk of anxiety and depression, and seriously impairs performance. All work and no play is increasingly the norm and, as a New Yorker cartoon notes, it “makes you a valued employee.” . . . Unsurprisingly most surveyed lawyers report that they do not have sufficient time for themselves and their families, and overwork is a leading cause of lawyers’ physical and psychological health difficulties.
In addressing these issues, technology has created as many problems as it has solved. Electronic communication has made it increasingly possible for lawyers to work at home or on vacation, but has also made it increasingly impossible for them not to do so. Lawyers remain tethered to their devices, as Eilene Zimmerman notes in describing Peter’s memorial service. When a young associate from the firm “stood up to speak of their friendship . . . [q]uite a few of the lawyers attending the service were bent over their phones, reading and tapping out emails. Their friend and colleague was dead, and yet they couldn’t stop working long enough to listen to what was being said about him.”
Racial, ethnic, gender, and class bias also creates additional stress. Underrepresented groups often face isolation, denigration, harassment, and pressures to suppress aspects of their identity to fit the dominant 48culture. Chronic “micro-inequities”—subtle insults, denigrating messages, and patterns of being overlooked, and undervalued—can impair performance and psychological wellbeing. . . .
[Although increasing numbers of legal employers have responded with some wellness programs, and data are lacking on their effectiveness], the experience in other fields is not especially encouraging. All too often employers supply voluntary opportunities with or without modest incentives for participation, which do not attract most employees or address the root causes of stress (such as overwork, inflexible and predictable schedules, excessive competition and unrealistic time pressure). Failure to modify these conditions is not only inhumane, it is economically unproductive; bleary, burned out, disaffected and/or addicted lawyers are not delivering cost effective services. Leaders need to know more about how their policies and practices are exacerbating rather than combatting the problem.
1.How should the profession address these issues in different sectors of the profession including law schools, law firms, and bar associations? What strategies are most promising and what obstacles stand in the way?
2.The ABA has cosponsored a National Task Force on Lawyer Well-Being that has provided over forty-four specific recommendations for legal employers, legal educators, bar regulators, and other stakeholders.142 The proposals that have gotten the most traction focus on providing education and confidential access to resources for attorneys facing these challenges.143 There is, however, little evidence of a commitment to reducing the problems of overwork and inflexible schedules that compromise well-being.
In a recent survey of law firm leaders, the majority saw stress and workload as the main drivers of mental health and substance abuse difficulties.144 Other research finds that lawyers are the second most sleep-deprived professionals in the U.S., and that fatigue can compromise judgment and decisionmaking.145 Addressing these issues can, of course, be a tough sell to employers whose business model is built on long hours and constant availability. But lawyer impairment threatens these goals; stress and overwork are leading major contributors to physical and psychological 49problems.146 What can and should the profession do to respond to the causes not simply the symptoms of impairment?
That same survey found that, although 94 percent of law firm leaders believed that addiction to alcohol and drugs was stigmatized, 87 percent thought that getting treatment for addiction is not.147 If those beliefs are accurate, what can leaders do to encourage more lawyers to obtain treatment? What can the profession do to help address stress in times of crisis, such as the recent COVID-19 pandemic?148
1Am. Bar Ass’n, Comm’n on Professionalism, In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism (1986) (quoting Roscoe Pound, The Lawyer from Antiquity to Modern Times 5 (1953)).
2Id.; see also Herbert M. Kritzer, The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World, 33 Law & Soc’y Rev. 713 (1999).
3Robert L. Nelson & David M. Trubek, New Problems and New Paradigms in Studies of the Legal Profession, in Lawyers’ Ideals/Lawyers’ Practices: Transformation in the American Legal Profession 14 (Robert L. Nelson et al. eds., 1992); see also Deborah L. Rhode, In the Interests of Justice 23–38 (2000); Robert W. Gordon, The American Legal Profession, 1870–2000, in The Cambridge History of Law in America (Christopher Tomlins & Michael Grossberg eds., 2008).
4Am. Bar Ass’n, National Lawyer Population Survey: Historical Trend in Total National Lawyer Population, 1878–2019 (2019).
5Richard Susskind, The End of Lawyers (2010); William D. Henderson, From Big Law to Lean Law, 3 Int’l Rev. L. & Econ. 1 (2013).
6Rachel M. Zahorsky & William D. Henderson, Who’s Eating Law Firms’ Lunch?, ABA J., Oct. 2013, at 34.
7 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future 3 (2013).
8See infra Section E.
9 Robert J. Bonner, Lawyers and Litigants in Ancient Athens 200–43 (1927); George Calhoun, Introduction to Greek Legal Science 44–48 (1944); Thomas Holton, Preface to Law: The Professional Milieu 2–4 (1980).
10J.A. Crook, Legal Advocacy in the Roman World (1995); Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History 105–16 (J. Kelly trans. 1973); Hans Julius Wolff, Roman Law 95–117 (1951).
11See Henry S. Drinker, Legal Ethics 12–14 (1953); Stroud Frances Milsom, Historical Foundations of the Common Law 28 (1969); Marion Neef & Stuart Nagel, The Adversary Nature of the American Legal System: A Historical Perspective, in Lawyers’ Ethics: Contemporary Dilemmas 73, 76, 80 (Allan Gerson ed., 1980).
12Lawrence M. Friedman, A History of American Law 94, 96 (3d ed. 2005).
13Id. at 484.
14Id.
15Gordon, supra note 3.
16Maxwell Bloomfield, The Texas Bar in the Nineteenth Century, 32 Vand. L. Rev. 261, 269–71 (1979).
17Joseph Baldwin, The Flush Times of Alabama and Mississippi 37–38 (1957).
18Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1, 11–23, 165–314 (1993); Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise: 1870–1920, in Professions and Professional Ideologies in America 70 (Gerald L. Geison ed., 1983); Russell G. Pearce, Lawyers as America’s Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer’s Role, 8 U. Chi. L. Sch. Roundtable 381 (2001).
19Norman W. Spaulding, The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics, 71 Fordham L. Rev. 1397 (2003).
20John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar 319 (1982).
21 Id.
22John P. Heinz et al., The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995, 32 Law & Soc’y Rev. 751 (1998). For the full study, see John P. Heinz et al., Urban Lawyers (2005).
23Ronit Dinovitzer et al., Nat’l Ass’n of Law Placement Found. & Am. Bar Found., After the JD: First Results of a National Study of Legal Careers (2004).
24Ronit Dinovitzer et al., Am. Bar Found. & NALP Found., After the JD II: Second Results from a National Study of Legal Careers (2009); Dinovitzer et al., After the JD III: Third Results from a National Study of Legal Careers (2015).
25Dinovitzer et al., supra note 24, at 26.
26Am. Bar Ass’n Sec. of Legal Educ. & Admission to the Bar, Employment Outcomes as of April 2019 (Class of 2018 Graduates); Nat’l Ass’n of Law Placement, Employment for the Class of 2018—Selected Findings (2019).
27Dinovitzer et al., supra note 24, at 32.
28William D. Henderson, Three Generations of U.S. Lawyers: Generalists, Specialists, Project Managers, 70 Md. L. Rev. 373, 379–81 (2011).
29Dinovitzer et al., supra note 24, at 35.
30Id. at 58.
31Deborah L. Rhode, Justice and Gender: Sex Discrimination and the Law 20–21 (1989); see also Karen Berger Morello, The Invisible Bar: The Woman Lawyer in America 1638 to the Present (1986); Deborah L. Rhode, Perspectives on Professional Women, 40 Stan. L. Rev. 1163 (1988).
32Bradwell v. State, 83 U.S. 130, 141 (1872).
33In re Goodell, 39 Wis. 232, 245 (1875); see also Rhode, Justice and Gender, supra note 30, at 21–23.
34Goodell, 39 Wis. at 245; see also In re Lockwood, 9 Ct. Cl. 346, 348, 355 (1873).
35Belva Lockwood, My Efforts to Become a Lawyer, in Women and the American Economy: A Documentary History, 1675–1929, at 297–301 (W. Elliot Brownlee & Mary M. Brownlee eds., 1976).
36Michael Grossberg, Institutionalizing Masculinity: The Law as a Masculine Profession, in Meanings for Manhood: Constructions of Masculinity in Victorian America 133, 149 (Mark Carnes & Clyde Griffen eds., 1990) (quoting Clarence Darrow).
37Donna Fossum, Women in the Legal Profession: A Progress Report, 67 Women’s L.J. 1 (1981).
38Cynthia Fuchs Epstein, Women in Law 85 (1981).
39Id. at 61, 66–67; Rosabeth Kanter, Reflections on Women and the Legal Profession: A Sociological Perspective, 1 Harv. Women’s L.J. 1 (1978); James White, Women in the Law, 65 Mich. L. Rev. 1051 (1967).
40Gordon, supra note 3.
41Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976).
42Gordon, supra note 3.
43Geraldine Segal, Blacks in the Law 240 (1983).
44Gordon, supra note 3.
45Id. at 1, 4, 215.
46Edward J. Littlejohn & Leonard S. Rubinowitz, Black Enrollment in Law Schools: Forward to the Past?, 12 T. Marshall L. Rev. 415 (1987); Kellis E. Parker & Betty J. Stebman, Legal Education for Blacks, 407 Annals Am. Acad. Pol. & Soc. Sci. 144 (1973).
47Am. Bar Ass’n. Task Force on Minorities in the Legal Profession, Report with Recommendations (1986).
48State ex rel. Florida Bar v. Kimball, 96 So. 2d 825 (Fla. 1957).
49In re Kimball, 40 A.D.2d 252 (N.Y. App. Div. 1973), rev’d per curiam, 301 N.E.2d 436 (N.Y. 1973). Florida courts subsequently affirmed a recommendation that Kimball be readmitted to the bar if he passed the state bar examination. In re Kimball, 425 So. 2d 531 (Fla. 1982) (assessing costs of the proceeding against Kimball).
50Fla. Bd. of Bar Examiners Re N.R.S., 403 So. 2d 1315 (Fla. 1981).
51Tara K. Kelly & Elizabeth K. Penfil, Editor’s Introduction, The Los Angeles County Bar Association Report on Sexual Orientation Bias, 4 S. Cal. Rev. L. & Women’s Stud. 295, 305 (1995).
52Deborah L. Rhode & Lucy Buford Ricca, Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel, 83 Fordham L. Rev. 2483, 2487 (2015).
53Scott E. Page, The Diversity Bonus: How Great Teams Pay Off in the Knowledge Economy 15, 56–64 (2017).
54Id. at 133–34.
55Katherine W. Phillips, What Is the Real Value of Diversity in Organizations? Questioning Our Assumptions,” in Page, supra note 53, at 230.
56Adam Grant, Originals: How Non-Conformists Move the World 180–83 (2016).
57Phillips, supra note 55, at 231–34; David Rock & Heidi Grant, Why Diverse Teams Are Smarter, Harv. Bus. Rev. (Nov. 2016).
58Denise Lewn Loyd et al., Social Category Diversity Promotes Premeeting Elaboration: The Role of Relationship Focus, 24 Org. Sci. 757 (2013).
59See studies discussed in David Wilkins, From “Separate Is Inherently Unequal” to “Diversity Is Good for Business”: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 Harv. L. Rev. 1548, 1588–90 (2004); Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market-Based Argument for Law Firm Diversity, 35 J. Legal Prof. 1,7 (2009); Jonathan S. Leonard et al., Do Birds of a Feather Shop Together? The Effects on Performance of Employees’ Similarity with One Another and with Customers, 25 J. Org. Behav. 731 (2004).
60Page, supra note 53, at 42–48.
61See studies discussed in Deborah L. Rhode & Amanda K. Packel, Diversity on Corporate Boards: How Much Difference Does Difference Make?, 39 Del. J. Corp. L. 377 (2014).
62Brayley & Nguyen, supra note 59, at 34.
63Paula M.L. Moya & Hazel Rose Markus, Doing Race: An Introduction, in Doing Race 1, 6–10 (Paula M.L. Moya & Hazel Markus eds., 2010).
64Minority Corp. Counsel Ass’n, Sustaining Pathways to Diversity 16 (2009).
65Id. at 25.
66Id. at 15.
67See sources cited in Deborah L. Rhode, The Trouble with Lawyers 77–80 (2015); Deborah L. Rhode, Women and Leadership 3–4 (2016); Katherine W. Phillips, How Diversity Makes Us Smarter, Sci. Am., Oct. 2014.
68Shannon Lloyd & Charmine Hartel, Intercultural Competencies for Culturally Diverse Workteams, 25 J. Managerial Psychol. 846 (2010).
69Nat’l Ass’n of Law Placement, 2018 NALP Report on Diversity in U.S. Law Firms (2019) (since 2000, women have accounted for 46 to 49 percent of law school graduates; they now account for 46 percent of law firm associates but only 23 percent of partners); Vault/MCCA, 2018 Vault/MCCA Law Firm Diversity Study (women account for 46 percent of associates but only 24 percent of partners and 21 percent of equity partners); McKinsey & Co., Women in Law Firms 2 (2017) (women constitute 25 percent of leadership positions); Lara Bazelon, What It Takes to Be a Trial Lawyer If You’re Not a Man, The Atlantic, Sept. 2018 (citing studies of underrepresentation in trial positions).
70Dinovitzer et al., supra note 24, at 66.
71Major, Lindsey, & Africa, 2018 Parner Compensation Survey (2018); Paul Barrett, How Top U.S. Law Firms Get Away with Paying Women Less, Bloomberg Businessweek, Sept. 5, 2017.
72McKinsey & Co., supra note 69, at 6–7.
73Sam Reisman, Male Partners Make 53% More than Female Colleagues, Law 360 (Dec. 6, 2018), https://www.law360.com/articles/1108620/print?section=legalindustry (quoting Jeff Lowe).
74Am. Bar Ass’n, National Lawyer Population Survey (2019).
75Nat’l Ass’n of Law Placement, supra note 69.
76Vault/MCCA, supra note 69.
77Stephanie Russell-Kraft, LGBTQ Lawyers on Job Hunt Still Fear Facing Firms’ Barriers, Big L. Bus., June 27, 2019.
78Id.
79Am. Bar Ass’n, Comm’n on Women in the Profession, Visible Invisibility: Women of Color in Law Firms (2006); Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. Rev. 1225 (2006).
80Am. Bar Ass’n Comm’n on Women in the Profession & Minority Corp. Counsel Ass’n, You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession 9 (2018); FTI Consulting & Mine the Gap, #MeToo at Work: Overall and Women by Industry Topline Report 2 (2018); see also Am. Bar Ass’n Comm’n on Women in the Profession, Zero Tolerance: Modern Practices for Combating Sex-Based Harassment in the Legal Profession (2018).
81Lauren Stiller Rikleen, Survey of Workplace Conduct and Behaviors in Law Firms 8 (2018); Deborah L. Rhode, MeToo: Why Now? What’s Next?, 69 Duke L.J. 377 (2019).
82Sara Randazzo & Nicole Hong, At Law Firms, Rainmakers Accused of Harassment Can Switch Jobs with Ease; Opaque Hiring Practices in Legal Industry Often Make Prior Sexual-Harassment Complaints Easy to Leave Behind, Wall St. J., July 30, 2018.
83Christine Simmons, MoFo Capital Markets Team Jumps to Mayer Brown, N.Y.L.J., Feb. 28, 2018.
84Id.
85Barrett, supra note 71; Carmen D. Caruso, The Growing Wave of Gender Discrimination Lawsuits Against Big Law, ABA Sec. of Litig., Diversity and Inclusion Newsletter, Aug. 22, 2017.
86Barrett, supra note 71; Scott Flaherty, “Mommy Track Is a Dead End” at MoFo, Associates Claim in New Lawsuit, Am. Law., Apr. 30, 2018.
87Ayanna v. Dechert, LLP, 914 F. Supp. 2d 51, 56 (D. Mass. 2012).
88Joel Kovel, White Racism: A Psychohistory 44 (1984).
89David A. Thomas & Karen L. Proudford, Making Sense of Race Relations in Organizations, in Addressing Cultural Issues in Organizations 59 (Robert T. Carter, ed., 2000).
90Irwin Katz, Stigma—A Social Psychological Analysis 121 (1981); Michael Lerner, The Belief in a Just World: A Fundamental Delusion vii–viii (1980).
91Brian A. Nosek et al., Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site, 6 Group Dynamics: Theory, Res. & Prac. 101, 105–06 (2002).
92Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. Rev. 317, 335–39 (1987).
93Robin DiAngelo, White Fragility: Why It’s So Hard for White People to Talk About Racism 11 (2018).
94Marianne Cooper, The False Promise of Meritocracy, The Atlantic, Dec. 1, 2015 (collecting research).
95Id. at 117, 119, 121.
96Jerry Kang et al., Are Ideal Litigators White? Measuring the Myth of Colorblindness, 7 J. Empirical Legal Stud. 886 (2010).
97Mehta Stone, Asian-American Lawyers: Differences Abound, Fed. Law., Jan. 2017, 45.
98Arin N. Reeves, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills 3 (2014); Debra Cassens Weiss, Partners in Study Gave Legal Memo a Lower Rating When Told Author Wasn’t White, ABA J., Apr. 21, 2014.
99Stephanie A. Scharf & Roberta D. Liebenberg, Am. Bar Ass’n Comm’n on Women in the Profession, First Chairs at Trial: More Women Need Seats at the Table—A Research Report on the Participation of Women Lawyers as Lead Counsel and Trial Counsel in Litigation 25 (2015).
100N.Y. State Bar Ass’n, If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR (2017).
101Shira A. Scheindlin, Female Lawyers Can Talk, Too, N.Y. Times, Aug. 7, 2017, at A23. For more about gender dynamics within the courtroom, see Bazelon, supra note 69.
102Russell-Kraft, supra note 77 (quoting M. Dru Levasseur).
103Id.; Takeia Johnson, LGBT Attorneys of Color in the Legal Profession: A Discourse on Inclusion, Fed. Law., Jan./Feb. 2017, at 49; Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 Seton Hall L. Rev. 629, 666 (2019).
104Noam Schieber & John Eligon, 12 White Faces Reflect Blind Spot in Big Law, N.Y. Times, Jan. 27, 2019, at A1.
105Id.
106Christine Simmons, Paul Weiss Vows to “Do Better” After Partner Promotions Stir Diversity Debate, N.Y.L.J., Dec. 18, 2018 (quoting Brad Karp).
107Schieber & Eligon, supra note 104.
108Id.
109Miles E. Kuttler, Letter to the Editor, N.Y. Times, Jan. 31, 2019.
110 An Open Letter to Law Firm Partners , Am. Law. , Mar. 2019, at 42.
111 Dan Prophete, In Response to GCs’ Call for Diversity , Am. Law. , Mar. 2019, at 43, 45.
112Joe Patrice, If a Biglaw Firm Falls in the Woods and No One Issues a Press Release About Its Lack of Diversity, Above the Law, Feb. 20, 2019 (noting Sullivan & Cromwell’s failure to follow a longstanding practice of issuing a press release announcing its new partner class).
113Walter La Grande, Getting There, Staying There, ABA J., Feb. 1999, at 54.
114A good account of the dispute is Robert Kolker, The Gray Flannel Suit, N.Y. Mag., Feb. 26, 2007.
115Id.
116 Am. Bar Ass’n, Presidential Initiative Comm’n on Diversity, Diversity in the Legal Profession: The Next Steps (2010).
117Bill Henderson, Solving the Legal Profession’s Diversity Problem (Feb. 1, 2016), https://www.billhenderson.com/articles/2017/4/1/solving-the-legal-professions-diversity-problem.
118Id.
119Id.
120Lateral Link, LGBTQ in Biglaw: Advice for Law Firms and for Job Seekers, Above the Law (Feb. 10, 2017), https://abovethelaw.com/2017/02/lgbtq-in-biglaw-advice-for-law-firms-and-for-job-seekers/.
121Karen Donovan, Pushed by Clients, Law Firms Step Up Diversity Efforts, N.Y. Times, July 21, 2006, at C6.
122Linda A. Mabry, The Token, Cal. Law., July 2006, at 76.
123Alan Feuer, A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule, N.Y. Times, Aug. 23, 2017, at A16.
124Ellen McGirt, Move Over Rooney, The Mansfield Rule Has Arrived, Fortune, Aug. 29, 2017; Viva Chen, It’s Not Just About the Work, Am. Law., Aug. 7, 2017.
125Alexandra Navarre-Davis, Perspectives on Paternity Leave Bias in Law Firms, Am. Bar, May 16, 2019.
126Andrew Keshner, More American Men Clamor for Paternity Leave, Mkt. Watch, July 27, 2019.
127Kim Parker, Working-Mom Guilt? Many Dads Feel It Too, Pew Res. Ctr., Apr. 1, 2015.
128Debra Cassens Weiss, Second State Adopts ABA Model Rule Barring Discrimination and Harassment by Lawyers, ABA J., June 2019; see also Veronica Root, Combating Silence in the Profession, 105 Va. L. Rev. 805, 824–25 (2019).
129Am. Bar Ass’n, Annual Meeting Report 109, at 1 (2016).
130Texas Attorney General KP-0123 (2016).
131Eugene Volokh, Letter to the Arizona Supreme Court, In the Matter of: Petition to Amend ER8.4, Rule 42, May 15, 2018.
132Alex B. Long, Employment Discrimination in the Legal Profession: A Question of Ethics?, 2016 U. Ill. L. Rev. 445, 449, 458.
133Am. Bar Ass’n, Annual Meeting Report, supra note at 129, at 15.
134Root, supra note 128, at 833.
135Id. at 836–40.
136This problem is drawn from Ronald Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” but not Diversity of Thought, 4 Heritage Found., Oct. 6. 2016.
137Deborah L. Rhode, in Federalist Society, Ninth Annual Rosenkranz Debate: Hostile Environment Law and the First Amendment, YouTube, (Nov. 20, 2016), https://www.youtube.com./watch?=MYsNkMw32Eg&t=5s.
138John Parks, ABA Model Rule 8.2(g): An Exercise in Coercing Virtue?, 22 Chap. L. Rev. 267, 279 (2019).
139See Minn. Rules of Prof’l Conduct, R. 6.1 (“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year . . . In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”)
140Root, supra note 128, at 836–37.
141Fred Zacharias & Nick Badgerow, Apocalypse at Law: The Four Horsemen of the Modern Bar—Drugs, Alcohol, Gambling, and Depression, 18 Prof. Lawyer 1 (2007).
142Nat’l Task Force on Lawyer Well-Being: Recommendations for Positive Change (2017).
143Am. Bar Ass’n, Working Group to Advance Well-Being in the Legal Profession (2019).
144Patrick Krill, ALM Survey on Mental Health and Substance Abuse: Big Law’s Pervasive Problem, Law.com (Sept. 14, 2018).
145Yvonne Harrison & James Horne, The Impact of Sleep Deprivation on Decisionmaking: A Review, 6 J. Experimental Psychol. Applied 236 (2000); Catherine Rampel, America’s 10 Most Sleep-Deprived Jobs, N.Y. Times (Feb. 22, 2012); see also Susan Saab Fortney, Soul for Sale: An Empirical Study of Associate Satisfaction, Law Firm Culture, and the Effects of Billable Hour Requirements, 69 UMKC L. Rev. 239 273 (2000) (reporting that two-thirds of respondents agreed that working long hours adversely affects their ability to think critically and creatively).
146Nat’l Inst. of Mental Health, Five Things You Should Know About Stress, https://www.nimh.nih.gov/health/publications/stress/index.shtml (last visited Jan 3, 2020); Rajita Sinha, Chronic Stress, Drug Use, and Vulnerability to Addiction, Nat’l Inst. of Health (Oct. 2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2732004/.
147Patrick Krill, Big Law Leaders Say Stigma Comes with Addiction and Mental Health Problems, Recorder, Sept. 24, 2018.
148Patrick Krill, In a Year Full of Worry and Division, How to Protect Your Mental Health, Law.com, Mar. 16, 2020.
A.The Law Governing Lawyers: An Overview
The term “law of lawyering,” or “law governing lawyers,” refers to all the bodies of formal and informal law that regulate the professional conduct of lawyers. These include: (1) the ethics rules issued under the inherent power of the courts—which supply the most significant and detailed authority; (2) bar formal opinions, the Restatement (Third) of the Law Governing Lawyers, and ABA Standards for various legal specialties; (3) court rules (such as the Federal Rules of Civil Procedure and state-court counterparts), generally-applicable criminal and civil statutes and regulations, and fiduciary law; (4) the United States Constitution; and (5) tort law, in the form of legal malpractice actions. We discuss each below, as well as the parallel bodies of law governing judicial conduct.
1.Ethics Rules and the Inherent Power of the Courts
To practice law, you must belong to at least one state’s bar, which means simply that you have been admitted to practice in that state. Lawyers may belong to the bar of more than one state. The “bar” is nothing more than the set of all lawyers admitted to practice in the state at a given time. It is not the same as a bar association (a professional organization of lawyers).1 To practice in the federal courts of a state, lawyers require separate admission, although generally that merely involves the payment of a fee (and no special bar exam is required).
Ethics rules are promulgated by the courts of each state, as part of their inherent power to administer the courts. “Inherent powers consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.”2 This “inherent power doctrine” rests on separation of powers principles, and courts have occasionally struck down legislation permitting nonlawyers to practice law, as an invasion by the legislative branch of the courts’ inherent powers.3 52Although the outer bounds of inherent power are unclear, the authority of the courts to issue binding ethics rules and to discipline lawyers for ethics violations is firmly settled. However, courts have acknowledged that the legislative and executive branches can also regulate the legal profession—and they do.
Today’s state ethics codes are titled “Rules of Professional Conduct.” (In the past they were called Canons of Professional Ethics or the Code of Professional Responsibility, and older judicial decisions refer to them under those names.) All states base their Rules of Professional Conduct on a set of Model Rules of Professional Conduct produced by the American Bar Association (ABA). But it is important to understand that the Model Rules are not the law of any state. The ABA is a private organization with no rulemaking authority. Its Model Rules are just what the title suggests: a model that states can use as a blueprint for their own rules.
In fact, all states modify the ABA’s rules to suit their own preferences—no state’s rules are a 100 percent match with the Model Rules. Textbooks, including this one, focus on the Model Rules, and the Multistate Professional Responsibility Examination (MPRE) tests knowledge of the Model Rules. But—we repeat—the Model Rules are not the law. The state codes are.
Formally, a state’s ethics code (its Rules of Professional Conduct) is promulgated by its highest court. In practice, courts delegate the task of rule writing to committees of lawyers, and then adopt what the committee produces. This is one way in which law is a self-regulating profession: The bar writes the ethics rules, and judges (not legislators) adopt them.
The courts also supervise the lawyer discipline system. In some states, nominally independent agencies are tasked with handling disciplinary matters. Each oversight organization has a staff of professional prosecutors, called bar counsel, to investigate grievances against lawyers and, if necessary, prosecute lawyers for ethics violations. Hearings take place before disciplinary panels composed mostly of lawyers. (Many states also include at least one nonlawyer on disciplinary panels.) This is the second way the legal profession regulates itself. If either side appeals a panel decision, it goes to the courts. We discuss the disciplinary process in detail in Section E, below.
2.Bar Opinions, the Restatement of the Law Governing Lawyers, and ABA Standards
State and local bars and bar associations provide ethical guidance to lawyers in several forms. First, every state’s Rules of Professional Conduct include “Comments” on the rules. So do the ABA Model Rules, and state rule-makers often copy the Model Rules’ Comments verbatim or nearly verbatim. These Comments explain each rule’s rationale and 53provide interpretive guidance. Unlike the Rules themselves, the Comments are non-binding. Second, most state bars run hotlines staffed by volunteer lawyers to answer lawyers’ run-of-the-mill questions in a time-sensitive manner. For larger issues, state and local bar associations—and also the ABA—have ethics committees that write interpretive opinions. Written by volunteers, bar opinions naturally vary in quality; the best are impressively reasoned analyses of the rules comparable to good judicial opinions. In roughly a dozen states, these opinions have binding force. In most states, meanwhile, bar opinions have no force of law, but the courts treat them as persuasive. This means, as a practical matter, that lawyers who follow the opinions’ guidance have a powerful defense against ethics charges; in that respect, following the opinions is usually a “safe harbor” for lawyers, even in states where the opinions are not formally binding.4
In the 1990s, the American Law Institute (ALI) created a compendious Restatement (Third) of the Law Governing Lawyers, with detailed black-letter rules and Reporters’ comments. Like all ALI Restatements, it draws on case law and aims to provide a statement of the law in the majority of jurisdictions. It sometimes differs from the ABA Model Rules and it is often much more specific. Like the Model Rules, the Restatement lacks the force of law, but it has powerful persuasive authority, and it often provides the best guidance for lawyers facing ticklish issues that the rules do not clearly resolve.
The ABA also issues model standards for specialty practice areas, for example the ABA Standards on Criminal Justice (for prosecution and defense lawyers) and the ABA Model Standards for Family and Divorce Mediation. You’ll note, for example, that we frequently cite to the ABA’s Standards on Criminal Justice in Chapter 8, as we discuss dilemmas of advocacy in the criminal law paradigm.
3.Court Rules, Statutes, and Regulations
Lawyers are also bound by court rules and generally-applicable statutes and regulations.
Obviously, lawyers must follow the rules of procedure and evidence in the courts before which they practice. Some of these rules run parallel to ethics provisions. For example, Rule 11 of the Federal Rules of Civil Procedure, discussed in detail in Chapter 7, prohibits frivolous legal filings and arguments, and Model Rule 3.1 does the same.
The legal profession also is bound by generally-applicable federal and state criminal laws, banking and securities laws, antitrust law, consumer protection law, antidiscrimination law, and other law of general applicability. Thus, for example, in Goldfarb v. Virginia, 421 U.S. 773 (1975), the Supreme Court struck down minimum fee schedules set 54by state bars as an antitrust violation. As for criminal law, consider, for example, United States v. Bronston, 658 F.2d 920 (2d Cir. 1981). Bronston was a partner in a New York City law firm. Unbeknownst to the firm, he did legal work for a major financier even though the firm was representing a client bidding against the financier for the same municipal contract on which Bronston was advising him. Bronston’s conduct was a clear-cut conflict of interest—an ethics violation—but he was also convicted under a federal fraud statute and sentenced to four months in prison. Two decades later, a partner in a renowned Wall Street law firm went to prison in Wisconsin for bankruptcy fraud because of an undisclosed conflict of interest.5 Both cases illustrate that ethics violations can also be criminal offenses. The conflict of interest laws governing lawyers working for the federal government are also backed by criminal penalties.6
Quite apart from criminal law, states statutorily regulate the practice of law, and that regulation is quite extensive in the nation’s two largest jurisdictions, California and New York. In some contexts, the federal government regulates lawyer conduct as well. For example, the Sarbanes-Oxley Act requires lawyers to report possible securities violations by client companies, in some cases by going over their supervisors’ heads directly to the company’s board of directors. We discuss these Sarbanes-Oxley requirements extensively in Chapter 11.
Next, some state and federal agencies have adopted their own rules governing the conduct of lawyers practicing before them. Violation of these rules can result in loss of the right to practice before the agency.7 For example, lawyers practicing before federal immigration courts are forbidden from engaging in “contumelious or otherwise obnoxious conduct”—an unusually-worded rule that may well send immigration practitioners scurrying to their dictionaries.8 So too, immigration lawyers are forbidden from “knowingly or with reckless disregard” making a false statement of fact or law—arguably a more stringent rule than Model Rule 3.3(a)(1), which forbids knowingly false statements, but not recklessly false statements.9 The Treasury Department also has promulgated a detailed set of regulations to govern all professionals—nonlawyers as well as lawyers—who practice before the Internal Revenue Service.
In addition to rules, statutes, and regulations, lawyers have fiduciary obligations to their clients. Although the retainer agreement 55between client and lawyer takes the form of a contract, its fiduciary character means, in the words of the classic case Meinhard v. Salmon, that the lawyer “is held to something stricter than the morals of the marketplace.”10 Lawyers must place the clients’ interests above their own. In many contexts, the lawyer is the client’s agent, legally empowered to speak for the client and bind the client. Fiduciary duties such as confidentiality and the avoidance of conflicts of interest are rooted in agency law—although the specific contours of those obligations are spelled out in the applicable Rules of Professional Conduct, which sometimes differ from agency standards.11
The Constitution supplies yet another set of relevant authority. In the area of criminal justice, Fifth Amendment standards of due process and the Sixth Amendment rights to effective assistance of counsel govern lawyer conduct. For example, Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose exculpatory evidence to the defense, and Model Rule 3.8(d) makes this an ethics obligation as well. In addition, as discussed in Chapter 13 on Market Regulation, in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court held that the First Amendment protects some forms of lawyer speech, including attorney advertising. And, the following year, in In re Primus, 436 U.S. 412 (1978), the Supreme Court upheld the right of a lawyer for a nonprofit organization to solicit clients, as a form of protected political expression. In another arena, Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), protected the free speech rights of a lawyer who made allegedly prejudicial comments about a case during a press conference.
A final constraint on attorney behavior comes from tort law and specifically the tort of legal malpractice. Lawyers who commit malpractice by departing from the customs of the profession can be liable to clients, and sometimes to third parties, injured by their misconduct. We discuss the malpractice system in Section D.2 below.
A violation of the Rules of Professional Conduct is not automatically malpractice even if it causes injury. In practice, however, a client who sues a lawyer for malpractice and can prove the lawyer violated ethics rules will often have a winning case.
For obvious reasons, malpractice insurers have a strong incentive to make sure that the lawyers they insure avoid ethics violations as well as other malpractice. Those insurers set conditions for purchasing malpractice policies, which may require a law firm to put a conflicts 56checking system in place, as well as a tickler system to ensure that lawyers do not miss deadlines. Insurers may require their own review of opinion letters by law firms, and they may conduct ethics audits of their policyholders. In this way, malpractice insurance providers become de facto ethics enforcers, and the conditions they attach to malpractice policies are, in effect, a “private” system of ethics regulation.12
B.Professional Regulation and Choice of Law
The above discussion reveals that lawyers are regulated by a complex web of state and federal laws, opinions, rules, and regulations. Beyond that, there is another layer of complexity because much of lawyers’ contemporary practice crosses state lines or sometimes national borders. This interstate and transnational mobility creates the difficult question of which jurisdiction’s law governs a given lawyer’s conduct.
Where state ethics rules differ or conflict, Rule 8.5 offers guidance. States have always reserved the right to discipline lawyers whom they license regardless of where the lawyer’s misconduct occurred, and Rule 8.5(a) restates this “long-arm jurisdiction” principle. In addition, in 2002, the ABA amended Rule 8.5(a), to add the sentence: “A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.” As to the choice of law, Rule 8.5(b) provides:
[T]he rules of professional conduct to be applied shall be as follows:
(1)for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2)for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
Stated differently, Rule 8.5(b) provides that in litigation settings, the ethical rules of the forum tribunal apply. In non-litigation settings, the ethics rules that apply are those of the state where the conduct occurred, unless the conduct’s “predominant effect” was felt elsewhere.
Still, both tests are susceptible to criticism. While the territorial approach arguably errs on the side of rigidity, the “predominant effect” test has been criticized for indeterminacy, as it may be impossible to know in advance where the predominant effect of the lawyer’s action might be.
57Beyond the question of indeterminacy, it may also seem puzzling that a state can exercise any disciplinary authority over a lawyer not licensed to practice in that state. After all, suspension and disbarment—the ultimate sanctions in lawyer discipline—by definition, apply only when the lawyer has a state license that can be suspended or revoked. However, courts and bar agencies have other sanctions available that can extend to lawyers from other states. A state can issue a private or public reprimand, and it can refuse ever to admit the lawyer to its own bar, even on a pro hac vice basis. Perhaps most importantly, many states have reciprocal discipline relationships with other states. Under these reciprocity agreements, another state’s discipline of a lawyer may trigger discipline in the lawyer’s home state as well.
Federal-State Choice-of-Law
Determining applicable standards of professional conduct by lawyers in federal courts has turned out to raise additional and vexing problems. Current practice varies widely among the ninety-four federal districts, and a lack of uniformity of each district’s rules of professional conduct makes it difficult for lawyers even to find out what the local rules are, much less comply with them. Some districts adopt the ethics rules of the state in which the court sits; others modify those rules slightly; still others have rules of their own, usually the ABA Model Rules. Furthermore, federal districts vary in their answers to the “Erie question” of whether to adopt state-court interpretations of state rules or to develop a federal common law of professional responsibility.
The following problems illustrate the care with which lawyers must analyze choice-of-law problems to determine their ethical obligations.
a)You are bar counsel in State X. You have successfully prosecuted a discipline case against Mason, a lawyer licensed in X. Mason had filed a consumer class action against Ajax Pharmaceuticals, the manufacturer of a widely-used shampoo for head lice. The action alleged that the shampoo is ineffective. Ajax’s lead defense counsel, Ross, negotiated a settlement agreement with Mason in which Mason obtained a large fee while his clients obtained minimal damages. The agreement also required Mason not to tell plaintiffs the details of the negotiation, or their likelihood of obtaining a higher recovery if they declined the settlement offer. The representative clients learned of the agreement through a whistleblower on Ajax’s defense team. State X’s disciplinary authorities suspended Mason for violating Rules 1.4 (on communicating with clients) and 1.7 (on conflicts of interest).
You are now considering disciplinary action against Ross, Ajax’s counsel, for violating Rule 8.4(a), which states: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do 58so through the acts of another” (emphasis added). You believe that Ross assisted or induced Mason to commit disciplinary violations because Ross wanted to settle the case on favorable terms. However, Ross is licensed in State Y (the state where Ajax is located) but not in State X. None of the members of Mason’s client class lives in State Y.
If Ross and Mason negotiated the settlement agreement at a meeting in State Y, do you have jurisdiction to seek discipline against Ross in State X? What if they had negotiated the settlement agreement in State X? Alternatively, what if they negotiated the agreement electronically, each in their own home state? Should the physical location at which the agreement was negotiated matter?
b)Alternatively, you are bar counsel in State Z. On Ross’s advice, employees of Ajax have made fraudulent misrepresentations about the shampoo (asserting that it has no problems) and the progress of the lawsuit (asserting that it has no factual basis) to consumer protection officials in State Z. Ross is not licensed in State Z, and none of Mason’s clients live in Z. Do you have jurisdiction to pursue disciplinary charges against Ross in Z for violating Rule 1.2(d), “A lawyer shall not counsel a client to engage . . . in conduct that the lawyer knows is criminal or fraudulent”?
Reference: Rule 8.5 .
You work for the St. Louis, Missouri office of a large national law firm. Your firm is headquartered in New York, and you are licensed in both Missouri and New York. Currently you are representing Hypertronics, a closely-held Missouri-based technology company that is negotiating its own sale to ALS, a high-tech company whose headquarters and principal facilities are located in Princeton, New Jersey. You are also licensed to practice in New Jersey. You have done a variety of paperwork for the pending sale.
Together with Hypertronics executives and the company’s general counsel, you have flown to New York City, where the deal will be closed at a meeting with ALS executives. The meeting will take place at your firm’s New York offices. In New York, Hypertronics’s general counsel reveals to you that, due to unanticipated technical problems in some of its new product designs, the company may default on several major contracts. These contracts had figured prominently in setting the purchase price for Hypertronics. Without them, it is highly unlikely that ALS would have agreed to buy Hypertronics for the agreed-upon price. If, as seems likely, Hypertronics defaults on the contracts after being purchased, ALS would lose a substantial amount of money.
Hypertronics’ general counsel maintains that the risk of default is not sufficiently high, and its materiality is not sufficiently clear, to require disclosure to the purchaser. Over your protests, counsel insists 59that the closing proceed at the agreed-upon price. You believe that this would constitute a civil (not criminal) fraud under both Missouri and New Jersey law.
The gnarly problem is that New Jersey’s confidentiality rule requires you to disclose client confidences if that is necessary to prevent client fraud that would inflict substantial financial injury, but Missouri’s rule forbids the disclosure. New York’s rule permits the disclosure but does not require it. The relevant confidentiality rules in the three states are as follows.
Missouri Rules of Professional Conduct 4–1.6:
(a)A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4–1.6(b).
The exceptions provided in paragraph (b) do not include revealing confidences in cases of client fraud. Nor, under relevant law, is disclosure “impliedly authorized in order to carry out the representation.”
New Jersey Rules of Professional Conduct 1.6(b)(1) provides:
A lawyer shall reveal [information relating to representation of a client] to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client . . . from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in . . . substantial injury to the financial interest of property of another.
New Jersey Rule 1.6(e) provides:
Reasonable belief for purposes of [Rule] 1.6 is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsection . . . (b) . . . .
Finally, New York’s confidentiality rules permit you to reveal confidential information “to prevent the client from committing a crime,” and “to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.”
One other gnarly problem: Each of the three states has a choice of law rule in its state version of Rule 8.5. The Missouri and New Jersey choice of law rules are identical to Model Rule 8.5(b). New York’s choice of law provision has an important substantive difference from the ABA rule. Whereas Model Rule 8.5(b)(2) focuses on the jurisdiction where the conduct took place, New York Rule of Professional Conduct 8.5(b)(2)(ii) 60focuses on the jurisdiction where the lawyer principally practices. It reads:
If the lawyer is licensed to practice in this state and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.
a)Is the “predominant effect” of your conduct in Missouri, New Jersey, or New York? Or is there no predominant effect in one state rather than another? Which state’s choice-of-law rule applies?
b)Which state’s confidentiality rule applies?
c)Should you reveal the information about Hypertronics’s potential contract default or not?
d)Suppose that ALS, the New Jersey company, also has a major facility in New York. How does that affect the analysis?
One way to approach these questions is to notice that if you consummate the deal ALS might suffer loss, while if you don’t it is Hypertronics that might suffer loss. Imagine that whichever company suffers the loss files a grievance against you in all three state bars. How would each state’s bar counsel approach the problem?
C.The Model Rules of Professional Conduct: Origins and Effect
The first formulations of professional ethics date back some 2500 years to principles established by medical practitioners. The first British barristers were subject to rules of their Inns of Court, and in the mid-18th century, Parliament passed a comprehensive statute regulating solicitors. However, it was not until the early 20th century that American lawyers formalized a similar body of standards in an official code.
During the bar’s early years, its ethical norms arose largely through professional traditions and informal community oversight. Judicial sanctions were relatively rare and usually occurred in response to violations of criminal or civil law.13
In 1906, the ABA issued an influential report recommending a formal ethics code. The immediate impetus for the Committee’s formation was a Harvard University address by then-President Theodore 61Roosevelt that rebuked corporate lawyers for helping powerful clients evade regulatory legislation. The ABA’s president authorized a Committee to consider whether the “ethics of our profession rise to the high standards which its position of influence in the country demands.”14 As the following Report reflects, the Committee’s concerns were rather different than Roosevelt’s.
American Bar Association “Report of the Committee on [the] Code of Professional Ethics”
600, 600–04 (1906 American Bar Association Reports).
To the American Bar Association:
Your instructions direct us to report upon the “advisability and practicability” of the adoption of such a code [of ethics].
First, as to advisability.
We are of opinion that the adoption of such a code is not only advisable, but under existing conditions of very great importance. There are several considerations moving us to this conclusion:
1.With Wilson, Webster and others, we believe that “justice is the great interest of man on earth.” And here in America, where justice reigns only by and through the people under forms of law, the lawyer is and must ever be the high priest at the shrine of justice. Under our form of government, unless the system for establishing and dispensing justice is so developed and maintained that there shall be continued confidence on the part of the public in the fairness, integrity and impartiality of its administration, there can be no lasting permanence to our republican institutions. Our profession is necessarily the keystone of the republican arch of government. Weaken this keystone by allowing it to be increasingly subject to the corroding and demoralizing influence of those who are controlled by graft, greed and gain, or other unworthy motive, and sooner or later the arch must fall. It follows that the future of the republic depends upon our maintenance of the shrine of justice pure and unsullied. We know it cannot be so maintained unless the conduct and motives of the members of our profession, of those who are the high priests of justice, are what they ought to be. It therefore becomes our plain and simple duty, our patriotic duty, to use our influence in every legitimate way to help make the American Bar what it ought to be. A code of ethics, adopted after due deliberation and promulgated by the American Bar Association, is one method in furtherance of this end.
2.With the marvelous growth and development of our country and its resources, with the ranks of our profession ever extending, its fields of activities ever widening, the lawyer’s opportunities for good and evil are correspondingly enlarged, and the limits have not been reached. We 62cannot be blind to the fact that, however high may be the motives of some, the trend of many is away from the ideals of the past and the tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood or of personal aggrandizement. With the influx of increasing numbers, who seek admission to the profession mainly for its emoluments, have come new and changed conditions. Once possible ostracism by professional brethren was sufficient to keep from serious error the practitioner with no fixed ideals of ethical conduct; but now the shyster, the barratrously inclined, the ambulance chaser, the member of the Bar with a system of runners, pursue their nefarious methods with no check save the rope of sand of moral suasion so long as they stop short of actual fraud and violate no criminal law. These men believe themselves immune, the good or bad esteem of their co-laborers is nothing to them provided their itching fingers are not thereby stayed in their eager quest for lucre. Much as we regret to acknowledge it, we know such men are in our midst. Never having realized or grasped that indefinable ethical something which is the soul and spirit of law and justice, they not only lower the morale within the profession, but they debase our high calling in the eyes of the public. They hamper the administration and even at times subvert the ends of justice. Such men are enemies of the republic; not true ministers of her courts of justice robed in the priestly garments of truth, honor and integrity. All such are unworthy of a place upon the rolls of the great and noble profession of the law.
3.Members of the Bar, like judges, are officers of the courts, and like judges should hold office only during good behavior. “Good behavior” should not be a vague, meaningless or shadowy term devoid of practical application save in flagrant cases. It should be defined and measured by such ethical standards, however high, as are necessary to keep the administration of justice pure and unsullied. Such standards may be crystallized into a written code of professional ethics, and a lawyer failing to conform thereto should not be permitted to practice or retain membership in professional organizations, local or national, formed, as is the American Bar Association, to promote the administration of justice and uphold the honor of the profession. Such a code in time will doubtless become of very great practical value by leading to action through the judiciary, for the courts may, as conditions warrant, require all candidates for the Bar to subscribe to suitable and reasonable canons of ethics as a condition precedent to admission. If this be done, the courts will be in an indisputable position to enforce, through suspension or disbarment, the observance of proper ethical conduct on the part of members of the Bar so admitted. Action by the national Association will also tend to develop uniformity between the various states, not only in form and method of statement, but also in application, and this we deem of practical importance. . . .
634.A further reason why we report the advisability of canons of ethics being authoritatively promulgated arises from the fact that many men depart from honorable and accepted standards of practice early in their careers as the result of actual ignorance of the ethical requirements of the situation. Habits acquired when professional character is forming are lasting in their effects. The “thus it is written” of an American Bar Association code of ethics should prove a beacon light on the mountain of high resolve to lead the young practitioner safely through the snares and pitfalls of his early practice up to and along the straight and narrow path of high and honorable professional achievement.
1.What group of lawyers is the Committee referring to as “the shyster, the barratrously inclined, the ambulance chaser, the member of the Bar with a system of runners”? What client populations do such lawyers serve?
2.Is it true that “the lawyer must ever be the high priest at the shrine of justice”?
2.The Evolution of Bar Ethical Rules
Following the above 1906 Report, an ABA Committee drafted thirty-two model Canons of Ethics, which the Association approved in 1908 with little controversy or debate. Most states adopted the Canons, in some instances with local modifications. In most other states, the Canons were treated as a source of guidance to practitioners, courts, and disciplinary tribunals. However, substantial problems in enforcement soon arose, in part because of the standards’ brevity, generality, and attempt to combine moral exhortation with disciplinary mandates. The situation worsened as the number of Canons multiplied. By the late 1960s, there were forty-seven Canons, and some 1400 formal and informal opinions interpreting them by the ABA Standing Committee on Ethics and Professional Responsibility. The result was a proliferation of precedents lacking in coherence and consistency. Despite the unwieldy multiplication of texts, many significant ethical problems remained unacknowledged and unaddressed.15
The obvious inadequacies of this structure prompted the adoption of a new model Code of Professional Responsibility in 1969. Again, the proposed standards generated relatively little controversy. After approval by the ABA House of Delegates, the Code was ultimately adopted by every state except California, which enacted a similar body of rules.
In an effort to avoid the confusion that had surrounded the Canons, drafters of the Code divided the text into three parts: Canons, Ethical 64Considerations (ECs), and Disciplinary Rules (DRs). The nine Canons are “statements of axiomatic norms, expressing in general terms the standards of professional conduct.” ECs “are aspirational in character and represent the objectives toward which every member of the profession should strive.” DRs are the mandatory rules. Thus, the DRs are “hard law,” while the Canons and ECs are “soft law.” Understanding this structure is useful for contemporary lawyers because older judicial decisions and bar opinions refer to the Code of Professional Responsibility.
Yet, soon after the Code’s adoption, its content and structure began to provoke criticism. Some complained that the gulf between what the Ethical Considerations exhorted and what the Disciplinary Rules required fostered cynicism and created confusion concerning enforcement. Others identified further problems, including the Code’s failure to distinguish among various functions that lawyers performed (e.g., advocate, counselor) and the inconsistency of its rules on competition with newly emerging Supreme Court decisions. Within a decade of the Code’s adoption, a special ABA Commission was already recommending an alternative set of standards, the Model Rules of Professional Conduct.
Unlike their predecessors, the drafting of these Rules ignited considerable dispute. After heated debates, in 1983, the ABA approved a final version. Today, every state has adopted the Model Rules in large part, although with variations in certain substantive provisions, including the rules governing conflicts of interest and confidentiality.16 The Model Rules are often amended, but states do not always adopt the amendments. In practice, therefore, lawyers need to keep abreast of changes in their states’ Rules of Professional Conduct. Federal courts generally adopt the ethical provisions in force in the jurisdiction in which they sit.
The format of the Model Rules marks a significant departure from earlier codes. It provides black-letter rules with interpretive comments and little of the moral exhortation characteristic of its predecessors. A note on the Rules’ scope states that “the comments are intended as guides to interpretation, but the text of each rule is authoritative.” The advantage is that this format is familiar to lawyers, and it eliminates potential confusion between hard law and aspiration. However, some commentators have been critical of the Model Rules’ loss of aspirational content, which reduces ethics to the lowest common denominator of required conduct.17
653.Self-Regulation: Justification and Critique
A related issue involves the process for formulating bar ethical rules. Once a profession’s regulatory focus shifts from expressing shared values to specifying minimum disciplinary standards, how much control should it exercise over the drafting and enforcement process? As the following excerpt highlights, a recurrent critique of the legal profession’s regulatory codes is that they have been established by the group to be regulated.
Deborah L. Rhode, In the Interests of Justice
(2000).
In an influential history of the legal profession sponsored by the American Bar Association, former Harvard Law School Dean Roscoe Pound assured ABA leaders that their organization was not the “same sort of thing as a retail grocers’ association.” If he was right, it was for the wrong reason. Lawyers, no less than grocers, are motivated by their own occupational interests. What distinguishes the American bar is its ability to present self-regulation as a societal value. Lawyers retain far more control over their own oversight than any other group. Such freedom from external accountability too often serves the profession at the expense of the public. . . . The problem is not that bar policies are baldly self-serving. Lawyers and judges who control regulatory decisions generally want to advance the public’s as well as the profession’s interests. Rather, the difficulty is one of tunnel vision, compounded by inadequate accountability. No matter how well intentioned, lawyers and former lawyers who regulate other lawyers cannot escape the economic, psychological, and political constraints of their position. Without external checks, these decision makers too often lose perspective about the points at which occupational and societal interests conflict. . . .
Historically, the profession itself has controlled the regulatory process. For centuries, courts have asserted “inherent power” to regulate the practice of law. One rationale for this authority is that judges need to control the conduct and qualifications of lawyers in order to assure the proper administration of justice. A second justification is that self-regulation preserves the separation of powers and protects the independence of the legal profession from government domination. As a practical matter, American courts have delegated much of their regulatory authority to the organized bar, which defends its autonomy on similar grounds. According to the Preamble of the ABA’s Model Rules of Professional Conduct, “An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.”
These arguments have considerable force, but they cannot justify the current regulatory structure. Protecting the bar from state control clearly 66serves important values, and nations that lack an independent profession have had difficulty safeguarding individual rights and checking official misconduct. But professional autonomy and government domination are not the only alternatives. Many countries with an independent bar impose far more checks on its self-regulatory powers. Such governmental efforts to increase lawyers’ accountability do not necessarily pose significant risks of retaliation or threats to the proper administration of justice. Indeed, American courts often recognize as much, and increasingly permit some regulation of attorneys by legislatures and administrative agencies.
Yet on the whole, lawyers retain considerable control over their own regulation. Bar codes of conduct claim to protect the public, but the public has had almost no voice in their formulation or enforcement. Only one nonlawyer served on the commissions that drafted the American Bar Association’s Model Code of Professional Responsibility and the Model Rules of Professional Conduct. Only one was represented on the thirteen-member Ethics 2000 Commission that recommended revisions. The ABA House of Delegates, which has power to accept or amend model ethical codes, is composed exclusively of lawyers. And the state supreme courts that ultimately adopt, reject, or modify ABA standards, rely heavily on recommendations from their local bars. Although nonlawyers often have token representation on other regulatory bodies such as discipline committees, these lay members typically are selected by the profession. Almost never do they have the information, resources, leverage or accountability to consumer groups that would be necessary to check bar control.
The limitations of such a structure are obvious. Political and economic theorists have long recognized the self-regarding tendencies of self-regulating occupations. . . . The vast majority of surveyed lawyers favor bar control over regulatory processes despite the obvious potential for bias.
In justifying this control, lawyers often claim that ultimate governance authority rests with state judges, who do not face the same conflicts of interests as practitioners. Yet the history of self-regulation suggests the limitations of such oversight. Most judges are by training and temperament sympathetic to bar interests. Moreover, their reputation, effectiveness, and, sometimes, reelection, depend partly on cooperative relations with the profession. Seldom has the judiciary attempted to impose regulation that might seriously compromise lawyers’ status, income, or power. As a result, bar standards of conduct have been insufficiently demanding and inadequately enforced.
671.Deborah Rhode’s excerpt challenges the traditional justifications for the bar’s control over its own ethical codes and enforcement structures. How would bar leaders respond to this critique? How would you?18
2.Does the preceding critique give adequate weight to the importance of an independent profession? Consider the way that the close relationship between American lawyers and judges has helped both maintain the independence of the profession and the rule of law. The importance of such a relationship was well illustrated in the much-publicized “lawyer’s uprising” in Pakistan in 2007. Following Pakistani President Pervez Musharraf’s politically-motivated suspension of the Chief Justice of Pakistan and sixty-plus other judges, thousands of lawyers took to the street. For months, the lawyers led human rights activists, media, and students in protest. In 2009, following Musharraf’s resignation under intense pressure, the judges were finally reinstated. It seemed an “improbable victory,” but one that was deeply inspiring to the global profession.19
3.Other countries, including those with comparable legal traditions, such as Great Britain, New Zealand, and Australia, have moved to replace the profession’s self-regulatory powers with oversight by more independent bodies, including nonlawyers.20 Would such changes be desirable in this country? If so, how could they be achieved?21
4.What changes would you expect in the American bar’s codes of conduct if groups other than lawyers played a central role in the codification process?
5.Many commentators have challenged the desirability of state-based systems of ethical regulation for a profession whose work increasingly crosses state boundaries.22 Would it be more efficient for both lawyers and clients if the American bar was subject to national uniform standards of practice, admission, licensing, and discipline? Defenses of the current system take several forms. One is the standard justification for federalism: It is good to allow states to adjust to local circumstances and take somewhat different approaches to common concerns. Over time, the results from these varied approaches can help guide regulators to adopt the optimal strategy. Another argument rests not on claims that state regulation is desirable, but rather on assumptions that it is politically inevitable. Powerful groups within the profession see too little to gain from a move toward nationalization. How persuasive do you find these claims?
686.A final matter involves international regulation. Increasing globalization in the market for legal services has correspondingly increased the importance of international standards that affect American lawyers. For example, the United Nations in 1990 adopted Basic Principles on the Role of Lawyers as part of an effort to implement international standards in criminal justice. The Council of Bars and Law Societies of the European Union (CCBE), as the representative of bar associations in European Union countries, adopted a Code of Conduct in 1988, which was revised most recently in 2019.23 Conflict of laws issues can arise among national jurisdictions concerning lawyer regulation.
As noted above, American courts have traditionally asserted inherent power to regulate the practice of law. The tradition has its roots in thirteenth century English practices, when Edward I vested authority in the Lord Chief Justice of the Court of Common Pleas to determine those fit to appear before the bench. In disbarment proceedings before these early English courts, attorneys guilty of misconduct were literally cast over the “bar,” a wooden barrier separating judges and clerks from lawyers, litigants, and witnesses.
In this country, eighteenth and nineteenth century courts seldom exercised their disciplinary power. Community disapproval and lack of referrals were the primary sanction for professional misconduct and the inadequacy of this approach was a major impetus for the formation of bar associations. The rise of integrated (i.e., compulsory) bar associations in the early twentieth century brought an expansion in regulatory power. Under legislative or judicial mandate, both voluntary and integrated bars gradually acquired authority to investigate misconduct and to impose sanctions, subject to court oversight. The procedures governing lawyer discipline have varied from state to state, although they all must meet constitutional requirements. Because current disciplinary proceedings are “quasi-criminal” in nature, courts have extended basic due process safeguards such as (1) the opportunity to confront evidence and cross-examine witnesses, Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963); (2) the right to present witnesses and argument, In re Ginger, 372 F.2d 620 (6th Cir. 1967); and (3) the right to fair notice, In re Ruffalo, 390 U.S. 544 (1968). Lawyers may not be disciplined for invoking the privilege against self-incrimination, but the privilege does not extend to testimony about non-criminal conduct even if it might lead to professional discipline. Spevack v. Klein, 385 U.S. 511 (1967). A majority of jurisdictions require that disciplinary charges be proven by clear and convincing evidence. A minority demand only a fair preponderance of the evidence.
69The effectiveness of disciplinary structures is a matter of continuing concern. Only about one-quarter of surveyed Americans believe that the profession does a good job of disciplining its members.24 The readings that follow describe the capacities and limitations of bar disciplinary structures, as well as proposals for reform. Underlying this discussion are broader questions about self-regulation raised earlier. Are there inherent problems in a regulatory system controlled by the group to be regulated? If so, what follows from that fact?
1.The Duty to Report Misconduct
Unlike many other professionals, lawyers are compelled to “inform” on one another, in certain defined circumstances. Specifically, Rule 8.3 provides:
(a)A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b)A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c)This rule does not require disclosure of information otherwise protected by Rule 1.6 [confidentiality] or information gained by a lawyer or judge while participating in an approved lawyers assistance program.25
Additionally, Rule 8.4 provides:
It is professional misconduct for a lawyer to:
(a)violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b)commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c)engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d)engage in conduct that is prejudicial to the administration of justice;
(e)state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
70(f)knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g)engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. . . .26
———
The following cases explore two different scenarios relating to the duty to report. In the first, In re Himmel, the issue is what triggers the duty to report and what happens to lawyers who fail to meet it. The next two cases, Wieder v. Skala and Bohatch v. Butler & Binion, examine what happens to lawyers who do meet their reporting obligations—but suffer adverse consequences for doing so. In the latter cases, the question is what protections exist against retaliation for a lawyer who reports a colleague’s professional misconduct?
Supreme Court of Illinois
533 N.E.2d 790 (1988).
[Editors’ Note: The case arose after Tammy Forsberg retained attorney John R. Casey to represent her in a personal injury action. Having settled the claim for $35,000, Casey (who was entitled to a one-third contingency fee) declined to provide Forsberg with her two-thirds share of the recovery. After several unsuccessful efforts to collect, Forsberg hired James Himmel to represent her. Casey subsequently agreed to pay $75,000 in settlement of the claim and Forsberg agreed not to initiate criminal, civil, or disciplinary charges. When Casey failed to honor that agreement, Himmel sued and won a judgment of $100,000. However, he received no fee because, despite the judgment, Forsberg ultimately collected only $15,400 and Himmel’s retainer agreement gave him one-third of the recovery in excess of the amount owed on the original claim.
Prior to retaining Himmel, Forsberg had contacted the Illinois Attorney Registration and Disciplinary Committee (ARDC). When investigation revealed other complaints against Casey, ARDC initiated an action and subsequently disbarred Casey by consent. The ARDC then pursued charges against Himmel for failing to report Casey’s misconduct. On appeal, the Illinois Supreme Court sustained those charges.]
71n Justice Stamos delivered the opinion of the Court.
We begin our analysis by examining whether a client’s complaint of attorney misconduct to the Commission can be a defense to an attorney’s failure to report the same misconduct. Respondent offers no authority for such a defense and our research has disclosed none. Common sense would dictate that if a lawyer has a duty under the Code, the actions of a client would not relieve the attorney of his own duty. Accordingly, while the parties dispute whether or not respondent’s client informed the Commission, that question is irrelevant to our inquiry in this case. We have held that the canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them. . . . A lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code. . . .
Respondent contends that the information was privileged information received from his client, Forsberg, and therefore he was under no obligation to disclose the matter to the Commission. Respondent argues that his failure to report Casey’s misconduct was motivated by his respect for his client’s wishes, not by his desire for financial gain. To support this assertion, respondent notes that his fee agreement with Forsberg was contingent upon her first receiving all the money Casey originally owed her. Further, respondent states that he has received no fee for this representation of Forsberg.
Our analysis of this issue begins with a reading of the applicable disciplinary rules. Rule 1–103(a) of the Code states:
(a)A lawyer possessing unprivileged knowledge of a violation of Rule 1–102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
107 Ill.2d R. 1–103(a).
Rule 1–102 of the Code states:
(a)A lawyer shall not
(1)violate a disciplinary rule;
(2)circumvent a disciplinary rule through actions of another;
(3)engage in illegal conduct involving moral turpitude;
(4)engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or
(5)engage in conduct that is prejudicial to the administration of justice.
107 Ill.2d R. 1–102.
. . . We agree with the Administrator’s argument that the communication regarding Casey’s conduct does not [fall under the attorney-client privilege.] The record does not suggest that this 72information was communicated by Forsberg to the respondent in confidence. We have held that information voluntarily disclosed by a client to an attorney, in the presence of third parties who are not agents of the client or attorney, is not privileged information. . . . In this case, Forsberg discussed the matter with respondent at various times while her mother and her fiancé were present. . . . The record [also] shows that respondent, with Forsberg’s consent, discussed Casey’s conversion of her funds with the insurance company involved, the insurance company’s lawyer, and with Casey himself. Thus, under [prior precedent] the information was not privileged.
Though respondent repeatedly asserts that his failure to report was motivated not by financial gain but by the request of his client, we do not deem such an argument relevant in this case. This court has stated that discipline may be appropriate even if no dishonest motive [exists]. . . . In addition, we have held that client approval of an attorney’s action does not immunize an attorney from disciplinary action. . . .
The third issue concerns the appropriate quantum of discipline to be imposed in this case. . . . [Respondent’s] failure to report resulted in interference with the Commission’s investigation of Casey, and thus with the administration of justice. Perhaps some members of the public would have been spared from Casey’s misconduct had respondent reported the information as soon as he knew of Casey’s conversions of client funds. We are particularly disturbed by the fact that respondent chose to draft a settlement agreement with Casey rather than report his misconduct. As the Administrator has stated, by this conduct, both respondent and his client ran afoul of the Criminal Code’s prohibition against compounding a crime, which states in section 32–1:
A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender. . . . Compounding a crime is a petty offense.
Both respondent and his client stood to gain financially by agreeing not to prosecute or report Casey for conversion. According to the settlement agreement, respondent would have received $17,000 or more as his fee. If Casey had satisfied the judgment entered against him for failure to honor the settlement agreement, respondent would have collected approximately $25,588.
We have held that fairness dictates consideration of mitigating factors in disciplinary cases. . . . Therefore, we do consider the fact that Forsberg recovered $10,400 through respondent’s services, that respondent has practiced law for 11 years with no record of complaints, and that he requested no fee for minimum collection of Forsberg’s funds. However, these considerations do not outweigh the serious nature of respondent’s failure to report Casey, the resulting interference with the Commission’s investigation of Casey, and respondent’s ill-advised choice to settle with Casey rather than report his misconduct. . . .
73Accordingly, it is ordered that respondent be suspended from the practice of law for one year.
New York Court of Appeals
80 N.Y.2d 628 (1992).
n Opinion by Hancock, Jr., J:
Plaintiff, a member of the Bar, has sued his former employer, a law firm. He claims he was wrongfully discharged as an associate because of his insistence that the firm comply with the governing disciplinary rules by reporting professional misconduct allegedly committed by another associate. The question presented is whether plaintiff has stated a claim for relief either for breach of contract or for the tort of wrongful discharge in violation of this State’s public policy. The lower courts have dismissed both causes of action on motion as legally insufficient . . . on the strength of New York’s employment-at-will doctrine. For reasons which follow, we modify the order and reinstate plaintiff’s cause of action for breach of contract. . . .
[Wieder, an associate at the defendant law firm, asked the firm to represent him in his purchase of a condominium. The firm assigned another associate, L.L., to represent Wieder. L.L. neglected Wieder’s real estate transaction, and covered up his neglect by lying to him. When Wieder complained to partners at the firm, they admitted that L.L. was “a pathological liar.” Wieder insisted that the firm report L.L. to the bar’s disciplinary authorities. Eventually, and reluctantly, the firm did so, but fired Wieder.]
II.
We discuss first whether, notwithstanding our firmly established employment-at-will doctrine, plaintiff has stated a legal claim for breach of contract in the fourth cause of action. . . . The employment-at-will doctrine is a judicially created common-law rule “that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason.” [The Court notes that in preceding cases of retaliatory discharge of whistleblowers, the at-will employment doctrine prevented the employees from suing.] . . .
Defendants, a firm of lawyers, hired plaintiff to practice law and this objective was the only basis for the employment relationship. Intrinsic to this relationship, of course, was the unstated but essential compact that in conducting the firm’s legal practice both plaintiff and the firm would do so in compliance with the prevailing rules of conduct and ethical standards of the profession. Insisting that as an associate in their employ plaintiff must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship. . . . We conclude, 74therefore, that plaintiff has stated a valid claim for breach of contract based on an implied-in-law obligation in his relationship with defendants.
Supreme Court of Texas
977 S.W.2d 543 (1998).
n Opinion by Enoch, J:
Partnerships exist by the agreement of the partners; partners have no duty to remain partners. The issue in this case is whether we should create an exception to this rule by holding that a partnership has a duty not to expel a partner for reporting suspected overbilling by another partner. . . .
[In 1990, Collette Bohatch became a partner in the Texas law firm of Butler & Binion. She worked in the firm’s three-person Washington, D.C. office, which did virtually all of its legal work for Pennzoil. Bohatch came to believe that John McDonald, the managing partner in the office, was substantially overbilling Pennzoil. She raised the issue with the office’s other partner; then with the firm’s managing partner; and finally, with two other members of the firm’s management committee. The firm’s management committee investigated her charges and concluded that they were unfounded (a conclusion that Bohatch subsequently argued was a coverup). Bohatch was then informed that she should seek other employment. Subsequently, her partnership draw was reduced, and then her partnership was terminated. Bohatch sued the firm for breach of fiduciary obligation. A Texas jury awarded her $307,000 in compensatory damages and $4 million in punitive damages. On appeal, the Texas Court of Appeals held that Butler & Binion had not breached its fiduciary obligation to Bohatch, because the firm did not terminate her partnership for self-gain. It held that the firm had improperly withheld her partnership draw, however, and awarded her $35,000 plus attorneys’ fees. Bohatch appealed.]
. . . The issue presented, one of first impression, is whether the fiduciary relationship between and among partners creates an exception to the at-will nature of partnerships; that is, in this case, whether it gives rise to a duty not to expel a partner who reports suspected overbilling by another partner . . .
The fiduciary duty that partners owe one another does not encompass a duty to remain partners or else answer in tort damages. Nonetheless, Bohatch and several distinguished legal scholars urge this Court to recognize that public policy requires a limited duty to remain partners—i.e., a partnership must retain a whistleblower partner. They argue that such an extension of a partner’s fiduciary duty is necessary because permitting a law firm to retaliate against a partner who in good 75faith reports suspected overbilling would discourage compliance with rules of professional conduct and thereby hurt clients.
While this argument is not without some force, we must reject it. A partnership exists solely because the partners choose to place personal confidence and trust in one another. Just as a partner can be expelled, without a breach of any common law duty, over disagreements about firm policy or to resolve some other “fundamental schism,” a partner can be expelled for accusing another partner, which may have a profound effect on the personal confidence and trust essential to the partner relationship. Once such charges are made, partners may find it impossible to continue to work together to their mutual benefit and the benefit of their clients. . . . The threat of tort liability for expulsion would tend to force partners to remain in untenable circumstance—suspicious of and angry with each other—to their own detriment and that of their clients whose matters are neglected by lawyers distracted with intra-firm frictions. . . .
We emphasize that our refusal to create an exception to the at-will nature of partnerships in no way obviates the ethical duties of lawyers. Such duties sometimes necessitate difficult decisions, as when a lawyer suspects overbilling by a colleague. The fact that the ethical duty to report may create an irreparable schism between partners neither excuses failure to report nor transforms expulsion as a means of resolving that schism into a tort.
We hold that the firm did not owe Bohatch a duty not to expel her for reporting suspected overbilling by another partner. . . . We affirm the court of appeals’ judgment.
n Justice Spector, joined by Chief Justice Phillips, dissenting:
What’s the use you learning to do right when it’s troublesome to do right and ain’t no trouble to do wrong, and the wages is just the same?
—The Adventures of Huckleberry Finn
The issue in this appeal is whether law partners violate a fiduciary duty by retaliating against one partner for questioning the billing practices of another partner. I would hold that partners violate their fiduciary duty to one another by punishing compliance with the Disciplinary Rules of Professional Conduct. Accordingly, I dissent. . . .
[A]ttorneys organizing together to practice law are subject to a higher duty toward their clients and the public interest than those in other occupations. As a natural consequence, this duty affects the special relationship among lawyers who practice law together. . . . I believe that the fiduciary relationship among law partners should incorporate the rules of the profession promulgated by this Court. . . . In light of this Court’s role in setting standards to govern attorneys’ conduct, it is particularly inappropriate for the Court to deny recourse to attorneys wronged for adhering to the Disciplinary Rules. I would hold that in this 76case the law partners violated their fiduciary duty by retaliating against a fellow partner who made a good-faith effort to alert her partners to the possible overbilling of a client. . . . The duty to prevent overbilling and other misconduct exists for the protection of the client. Even if a report turns out to be mistaken or a client ultimately consents to the behavior in question, as in this case, retaliation against a partner who tries in good faith to correct or report perceived misconduct virtually assures that others will not take these appropriate steps in the future. Although I agree with the majority that partners have a right not to continue a partnership with someone against their will, they may still be liable for damages directly resulting from terminating that relationship. . . .
1.In re Himmel was the first reported decision disciplining a lawyer solely for his failure to report collegial misconduct. The decision provoked substantial controversy. Some commentators noted with approval that Illinois lawyers’ reports of misconduct increased after the court’s judgment (although subsequent prosecutions for failure to report misconduct have remained rare). This uptick matters because lawyers’ reports are more likely than clients’ reports to result in disciplinary charges and often expose conduct that would not otherwise reach disciplinary agencies because clients benefit or have been compensated.27
Other commentators pointed out that Himmel leaves many troubling issues unresolved. For example, how prompt must the report be and how much knowledge is necessary to trigger attorneys’ obligations? Should it be a “substantial basis,” “a firm opinion that the conduct in question had more likely than not occurred,” or some other standard? If the misconduct may be attributable to a substance abuse problem, would it be enough to contact a lawyer assistance program?28 Should lawyers for malpractice insurance companies also have obligations to inform disciplinary authorities of misconduct that comes to light in investigations related to policy coverage?
2.At the time Himmel was decided, lawyers’ conduct in Illinois was governed by Illinois’s version of the Model Code of Professional Responsibility, the predecessor to the Model Rules. Would James Himmel still have faced discipline, if Model Rule 8.3, rather than Rule 1–103(a), had been operative?
3.Can Wieder be distinguished from Bohatch? How?
774.Who has the better argument: the Bohatch majority or the Wieder court and Bohatch dissent?29
5.An associate in a Connecticut law firm discovered that another lawyer at the firm had changed computer-generated forms for client bills by substituting his name as the lawyer who provided a particular service in place of the lawyers who actually performed the service.30 The associate brought the matter to the attention of the managing partner. The partner subsequently reported that he had discussed the matter with the lawyer involved, had informed him that the conduct was unacceptable and must not be repeated, and had disclosed the conduct to the clients. The partner noted that no clients had been overcharged because the matters were being billed on the basis of fixed fees per case or a uniform hourly rate regardless of who performed the work. Accordingly, the partner believed that conduct did not need to be reported to the bar Grievance Committee.
The associate was unconvinced and asked the Connecticut Committee of Professional Ethics whether, under Rule 8.3 and also Rule 5.2, which permits a subordinate lawyer to defer to a “supervisory lawyer’s reasonable resolution of an arguable question of professional duty,” he could defer to the partner’s judgment about whether his colleague’s misconduct had to be reported.31
The Connecticut Committee of Professional Ethics concluded that the conduct, indeed, had to be reported—and that the associate could not defer to his senior colleague’s flawed analysis. It reasoned that this was not a situation that implicated Rule 5.2 because it was not a situation where the associate was “acting at the direction of a supervisory lawyer, in a matter . . . where a consistent course of action or position was required.” Moreover, in the Committee’s view, even if Rule 5.2 were applicable, the question of whether the lawyer’s misconduct raised a “substantial question” of his honesty and fitness to practice could “reasonably be answered only one way.” Accordingly, the associate was obligated to report the misconduct.
Do you agree? How would you have handled the matter, if you had been in the associate’s shoes? If an associate failed to report under these circumstances, should he be subject to discipline?
786.What constitutes sufficient knowledge of misconduct to trigger reporting and, with associates, to protect the reporting lawyer from retaliation? That was the issue in Joffee v. King & Spalding LLP.32 There, junior associate David Joffee reported to King & Spalding’s general counsel his concern that two senior partners had committed professional misconduct by falsely claiming in court that their client had not disclosed information in violation of a nondisclosure agreement when they, in fact, knew the opposite was true. The senior partners’ actions had resulted in a court order to show cause why they should not be sanctioned, which was settled after King & Spalding were replaced as counsel in the case. Immediately after Joffee reported his concern, he was demoted and his pay was frozen. Joffee then sent an email to the partner in charge of the firm’s associates committee, further criticizing the senior partners’ conduct and stating that the sanctions order was “entirely understandable.” Joffee was fired two months later and filed a claim under Wieder for retaliatory discharge. The firm’s defense was that Joffee could not sue because he lacked “actual knowledge” of the senior partner’s ethical misconduct. The district court rejected this argument, stating that an associate may file a Wieder claim if he “reported, attempted to report, or threatened to report suspected unethical behavior and that he suffered an adverse employment action.” A “good faith belief” in the partners’ unethical conduct was sufficient, and it did not matter that the associate only reported internally, not to the bar. Do you think this is an appropriate extension of Wieder? Does it give the right incentives to associates?
7.What types of violations raise “a substantial question” about a lawyer’s “honesty, trustworthiness or fitness” so as to trigger a reporting requirement under Rule 8.3? Note that state bars have opined that inaccurate advertising, unreasonable fees, and breaches of confidentiality trigger the duty to report,33 while others have found a lawyer’s failure to properly segregate client funds, timely file divorce judgments, and use of impermissible trade name do not.34 Do these cases help you to demarcate the line between actions that trigger the reporting requirement and those that do not? It is clear that the duty to report applies to misconduct even when that misconduct is committed by partners and lawyers in the reporting lawyer’s firm.35
8.Should lawyers be subject to discipline for conduct reflecting bias on the basis of race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status? See Rule 8.4(g). Should judges, or opposing counsel also report such misconduct to bar disciplinary authorities? Are they compelled to do so, under Rule 8.3?
9.Stepping back, the wisdom and value of Rule 8.3 remains disputed. With a few limited exceptions, laws in the United States do not require citizens to 79report even serious crimes to public authorities.36 Nor does tort law impose a duty to act, rescue, or report, except in very limited circumstances.37 Law professor (now federal judge) Gerard Lynch has argued that the same values underpinning society’s unwillingness to impose reporting requirements on citizens generally also apply in lawyer disciplinary contexts. In his view, the “impulse to protect one’s friends and associates from harm, even from deserved punishment, is a moral and socially useful impulse precisely because it reaches beyond individual self-interest; it assimilates another’s well being to that of oneself.”38 Professional relationships founded on trust serve an essential personal and societal function; they satisfy deep-seated interpersonal needs and provide essential buffers between the individual and the state. For lawyers, no less than other individuals, such considerations “counsel against the imposition of a generalized duty to inform.”39 To Lynch, the bar’s power of self-regulation imposes no special reporting responsibilities. A democratic society, he notes, is also self-regulating, but it delegates the police function to specialists. So too, Lynch argues, the profession can appropriately delegate the oversight process to bar disciplinary authorities.40
By contrast, most bar leaders believe that reports of serious collegial misconduct are essential to protect clients and the public from abuses that would otherwise be impossible to detect or deter.41 Rules imposing a duty to disclose misconduct and malpractice can provide critical support for those who would like to come forward but fear collegial hostility or retaliation. In effect, reporting requirements can make lawyers “feel less like a snitch.”42 Even lawyers who ultimately decline to report misconduct can find that a disclosure rule increases their leverage in seeking constructive responses to misconduct from errant attorneys or their firms. Under this line of analysis, reporting duties should be enforceable through professional disciplinary actions and civil liability. Such enforcement, it is claimed, would provide additional pressure for compliance with professional norms, as well as increase the remedies available to injured parties. However, these 80commentators also support greater protection of lawyer whistleblowers from retaliation.43
Do you agree? How would you respond to the issues presented in Problems 3 and 4 below, in light of the preceding arguments?
You are a junior partner in a prominent firm in a small city. Over the last several years, you have defended an insurance company in two separate personal injury suits handled by the same plaintiffs’ attorney. One of those cases settled for what you considered a grossly inadequate sum because the attorney failed to conduct sufficient factual investigation or legal research. The lawyer did, however, recover a substantial contingency fee for minimal work. In a second case, the lawyer bungled matters at trial through inept witness preparation, sloppy cross-examination, and a meandering argument before the jury. As a result, his seriously injured client recovered only a fraction of what the case was worth.
The attorney has now joined a small firm that specializes in insurance defense work. You are currently defending a claim in which one of the co-defendants is represented by that attorney. The attorney, who is this time charging by the hour, has insisted on attending depositions and meetings at which he is unnecessary and unprepared. On several occasions he has demeaned witnesses and lawyers of color; for example, in off-the-record statements, he has referred to one of his opposing counsel, a young Hispanic woman, as “Taco Belle.” And, in two instances, once to opponents and once to the court, the lawyer has misrepresented his reasons for seeking continuances. Although he claimed that he needed the schedule change to accommodate another trial, you know that he had planned a fishing trip for the time in question.
a)Which, if any, of the attorney’s practices violate the Rules? What, if any, action do you take?
b)Would you respond differently under (a) if you suspected that the lawyer’s inadequate preparation and inappropriate conduct was related to substance abuse or dementia?
c)If you said nothing, even after the second trial, did you violate Rule 8.3?
d)If you were chair of the state bar’s disciplinary review board, what strategies would you propose for responding to such misconduct? What standards and enforcement policies would you advocate regarding lawyers who possess unprivileged knowledge of professional misconduct by other attorneys and don’t report it?
References: Rules 1.1, 1.5, 3.1, 8.3, 8.4.
81You are a former prosecutor having drinks with a close friend (who also happens to be a law school classmate and former colleague) who tells you that he is dying of colon cancer. In that same conversation, he reveals that, years ago, he suppressed exculpatory blood evidence in a criminal case. You urge him to “remedy the situation.” He dies three months later without having done so.
a)What do you do immediately after having drinks with your close friend? What do you do upon your friend’s death? If you fail to report, have you violated Rule 8.3?
b)Same facts as in (a) but now suppose that, five years after the attorney dies, you learn that one of the defendants involved in the case is scheduled to be executed, and that his lawyer had discovered an exculpatory blood test that had not been revealed. You provide the defendant’s current lawyer with an affidavit recounting the conversation and then report the misconduct to the Office of Disciplinary Counsel disclosing the conversation. You also testify for the defendant in a motion for a new trial and acknowledge that “I should have reported [the misconduct] sooner, I guess.” Could, or should, the Office of Disciplinary Counsel file disciplinary charges against you for your failure to make a prompt report? If so, what sanction would be appropriate?44
References: Rules 3.8, 8.3, 8.4.
2.The Structure of Professional Discipline—and Its Critics
Supreme Court of Florida
384 So. 2d 1264 (1980).
William J. Neale, a member of The Florida Bar, petitions this Court for review of a referee’s recommendation in a bar grievance procedure. . . .
This complaint against Neale arose from his representation of a Mrs. Mitchell for a claim of injuries she suffered as a result of being bitten by a dog in 1970. After attempts to negotiate a settlement failed, Neale filed suit on Mitchell’s behalf in 1973. A few days before trial, Neale learned that the dog had a history of biting and that punitive damages might be available. His motion to amend the original complaint in order to allege punitive damages was denied, and Neale, believing that a four-year statute of limitations controlled, took a voluntary nonsuit with his client’s concurrence. At that time, however, the statute of limitations on strict liability arising from dog bites was three years, and the defendants 82successfully raised this defense in the subsequent suit. On appeal, the district court affirmed the trial court’s judgment against Mrs. Mitchell.
The referee found that Neale’s late discovery of the dog’s propensity to bite reflected inadequate preparation under the circumstances because Neale did not properly interrogate his client or make an independent investigation that would have resulted in his learning of the dog’s history of biting.
Neale learned a fact that he deemed important late in the game. He then overlooked or misconstrued the statute of limitations on his statutory remedy. This neglect, however, is not of sufficient magnitude to warrant conviction of an ethical violation under Canon 6.
The power to disbar or suspend a member of the legal profession is not an arbitrary one to be exercised lightly, or with either passion or prejudice. Such power should be exercised only in a clear case for weighty reasons and on clear proof. . . . There is a fine line between simple negligence by an attorney and violation of Canon 6 that should lead to discipline. The rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action under Canon 6 as a substitute for what is essentially a malpractice action.
Neale had prepared to go to trial on his original complaint. Late in the proceeding he discovered a theory upon which he might have obtained a larger recovery for his client but then made the mistake of dismissing the action. His conduct might well be the basis of a negligence action against him, but, in our minds, it is insufficient to warrant a disciplinary action.
We therefore reject the recommendations of both the referee and the bar and dismiss the charges against the respondent.
It is so ordered.
Deborah L. Rhode and Alice Woolley, “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada”
80 Fordham Law Review 2761, 2764–69 (2012).
The American disciplinary process has never lacked for critics. Over the last four decades, virtually every systematic review has identified serious inadequacies. In 1970, after a comprehensive national study, an American Bar Association Committee identified a “scandalous situation” in bar oversight. Subsequent committees have come and gone, documenting significant improvements but identifying chronic problems in responses to misconduct. Reviews by independent scholars have been even more critical. As Richard Abel summarized their consensus: “too little unethical behavior is named, blamed, claimed, and punished. . . .” Most Americans agree. Only about a third of the public believes that the bar does a good job disciplining lawyers. “Too slow, too secret, too soft, 83and too self-regulated” has been the traditional view. Yet lawyers themselves tend to fault the system on precisely the opposite grounds. Many see it as see it as “unfair, oppressive, and counterproductive” for those subject to regulation.
Both critiques have some basis in fact, although it is consumers who pay the greatest price. The basic problem is structural. As John Coffee puts it, self-regulation permits “the continued government of the guild, by the guild, and for the guild.” What that has meant for bar discipline is too little focus on consumer protection and too much focus on lawyers’ reputational concerns. Many disciplinary authorities do not even handle garden variety misconduct—“mere” negligence and overcharging—because of resource limitations and the (erroneous) assumption that other civil liability remedies are available. But virtually all authorities sanction misconduct committed outside of professional relationships in what is too often a misdirected effort to prevent discredit of the bar.
A.The Flawed Structure of Professional Discipline
The basic difficulty is that state supreme courts have claimed inherent authority to regulate the profession but have insufficient time, interest, or capacity to exercise that authority effectively. Most of these courts face crushing caseloads, and their justices have neither the resources nor the expertise to ensure adequate oversight. Nor do they have much inclination or incentive to challenge the organized bar on matters that hold great importance for lawyers but are not priorities for the general public. Judges share the background and world view of those they claim to regulate. As social theorists note, a group’s distinctive norms, behaviors, and ways of thinking construct an institutional identity that shapes decisionmaking. Moreover, most state judiciaries are elected and depend on lawyers for endorsements, rankings, and campaign contributions. Even in states where judges are selected through merit processes, state and local bars exercise substantial influence. The judiciary is also dependent on support from the organized bar concerning salaries and budgets, and is readily accessible to lawyer lobbying at conferences, annual meetings, and social gatherings. By contrast, consumer interests rarely have such opportunities for influence.
Part of the problem is the public’s lack of information and incentives to mobilize on the issue. Few voters are aware of the judiciary’s role in regulating the profession, and no powerful groups have sought to make such issues relevant in judicial elections. HALT, the only national consumer organization that focuses on reforming the legal profession, has only about 20,000 members. Its resources and influence cannot compare to those of local and national bar associations that represent close to a million lawyers. Nor have consumer protection agencies been willing to intervene and even the playing field. A primary reason is that the individual clients and third parties most vulnerable to lawyers’ misconduct lack political leverage and incentives to demand reform. Most are “one shot” players who use lawyers infrequently and episodically. In 84other regulatory contexts, the constituency that has been most effective in mobilizing consumers or representing their interests has been public interest lawyers. But the success of their efforts often depends on financial support and pro bono contributions from the private bar. Such assistance is hard to come by on issues that put the bar’s own interests at risk. The few sporadic efforts that have been made to create more publicly accountable disciplinary structures have proceeded with little consumer support and have folded in the face of opposition by the bar.
As a consequence, courts have delegated day-to-day oversight authority to bar organizations or to commissions that are nominally independent but that are closely aligned with bar interests. Lawyers can appeal disciplinary sanctions to the state supreme courts, but consumers have no effective recourse for decisions or processes that are unresponsive to their interests. Bar oversight processes are almost entirely reactive and generally respond only to complaints of serious professional misconduct or criminal convictions. Although almost all jurisdictions have ethical rules requiring lawyers to report evidence of misconduct, these mandates are widely ignored and rarely enforced. Only about ten percent of the complaints to disciplinary bodies come from the profession. Yet despite lawyers’ notorious unwillingness to inform on colleagues, the most comprehensive survey found only four disciplinary actions over two decades for failure to report ethical violations.
The resulting reliance on client grievances leads to under-inclusive remedies. The system fails to respond when clients benefit from the misconduct, as in abusive litigation practices or complicity in fraud, or when victims lack information or incentives to file complaints. Sophisticated business clients generally find that withdrawal of business or non-payment of fees offer more effective remedies than those available from the disciplinary system. Even less powerful consumers who lack such options often doubt that bringing the matter to the bar will produce a satisfactory response. They are generally correct. The vast majority of grievances are dismissed without investigation because they fail to state a plausible claim within agency jurisdiction; for the remaining claims, inadequate resources often limit the effectiveness of responses. Only about three percent of cases brought to disciplinary authorities result in public sanctions. Even where the bar finds significant misconduct, sanctions are often lax and clients are not guaranteed adequate compensation. For cases involving minor grievances of neglect, negligence, and fee disputes that authorities decline to handle, malpractice litigation is generally too expensive, and the lawyers most likely to be subject to complaints frequently lack civil liability insurance. Although a growing number of states have alternative dispute resolution systems for minor grievances and fee disputes, few of these programs are mandatory and not all are perceived as effective by clients. . . .
The problem is compounded by the absence of transparency. Most ethical violations by lawyers or inadequacies in bar responses are not 85visible to the public. Except in four states, bar disciplinary agencies will not disclose the existence of a complaint unless they have found a disciplinary violation or probable cause to believe that a violation has occurred. Lawyers with as many as 20 complaints under investigation have received a clean bill of health when a consumer asked for information about their records, and it has sometimes taken as many as 44 complaints over a decade to get a practitioner disbarred. Even where sanctions are imposed, the public lacks a ready way of discovering them. Not all states publish information concerning disciplinary sanctions, and many do not do so on-line or in forms that consumers can access. Because the vast majority of complaints never result in public sanctions, and the vast majority of malpractice actions never result in published opinions, consumers often lack crucial knowledge about lawyers’ practice histories.
The profession and the public also lack information that would enable them to assess the adequacy of disciplinary processes. Few states publish aggregate data concerning the nature of grievances, characteristics of attorneys, and sanctions imposed. The lack of transparency concerning the treatment of complaints, and the lack of proactive oversight of corporate lawyers whose clients seldom file grievances, feeds practitioners’ suspicion that the disciplinary system is biased against small firms, solo practitioners, and racial and ethnic minorities. The studies to date have not been adequate to evaluate those concerns. Nor do the twenty states that have diversion programs publish statistics on the effectiveness of these programs in preventing misconduct and addressing clients’ concerns.
One consequence of the profession’s failure to develop adequate regulatory processes is that other decision makers have stepped into the breach and supplemented or supplanted bar oversight. For example, lawyers’ complicity in some of the major financial scandals of the early 21st century led to no disciplinary actions but major new legislation. Congress required, over the ABA’s vehement objections, that counsel in publicly traded companies make internal reports of potential fraud to corporate leadership. Other federal and state agencies have imposed ethical standards beyond what bar rules require, and prosecutors have brought criminal proceedings where disciplinary authorities have failed to act. As John Leubsdorf summarizes the trend: “more and more regulators have sought to regulate the bar . . . and have become increasingly unwilling to defer to either bar associations or courts.” Commercial organizations have also entered the arena. Insurance companies have insisted on additional ethics-related safeguards as a condition of malpractice coverage and some directories and websites include information on lawyers’ disciplinary history and /or client reviews.
Yet these initiatives have fallen short. State courts’ assertion of inherent regulatory powers have limited the scope of comprehensive administrative and legislative intervention. And insurance companies’ 86 leverage has been limited by the unwillingness of all but [two] state bar[s] to require that lawyers have malpractice coverage. . . .
1.Do you agree with Rhode and Woolley that problems in the attorney disciplinary system are traceable, in large part, to the self-regulating nature of the legal profession? If outsiders regulated lawyers would problems be better or worse?
2.Commentators have proposed a variety of reforms to respond to the inadequacies Rhode and Woolley identify above. One cluster of strategies focuses on efforts to make the disciplinary process more proactive and effective. Here, reformers suggest that the jurisdiction of disciplinary agencies should be broadened to include concerns of neglect, negligence, and fees, and resources should be increased to insure adequate investigation and remedial responses. The standard of proof should be the same as for other civil matters—a preponderance of evidence—instead of clear and compelling evidence. In addition, reformers suggest that, rather than relying almost exclusively on felony prosecutions and complaints brought to their attention, regulatory officials should proactively initiate investigations based on malpractice filings, judicial sanctions, and random trust fund audits. In addition, reformers suggest that states should work to make grievances easier to file. Here, states should publicize the complaint process and assist individuals in filing complaints.45 Do you support these reforms?
3.Other countries with legal systems comparable to the United States have moved in a direction of greater responsiveness to consumer concerns and could serve as appropriate models for reform. These countries have established co-regulatory structures in which the bar shares authority with other, more publicly accountable entities. For example, in England and Wales, legal services are governed by an independent Legal Services Board, with a majority of lay members and a lay chair. Less serious complaints involving performance issues are addressed by the Legal Ombudsman, who may require the lawyer to apologize or to pay compensation for financial losses or “inconvenience/distress,” and may also take action “in the interests of the complainant” to put right “any specified error, omission or other deficiency.”46
In Australia, widely publicized scandals also prompted state governments to create more accountable and consumer-oriented regulatory processes. For example, Queensland has an independent Legal Services Commission headed by a nonlawyer.47 Its disciplinary system includes a Client Relations Center, which resolves minor disputes, and a Legal Practice 87Tribunal, composed of a Supreme Court Justice, one nonlawyer, and one practitioner as advisors. Problems of competence and diligence can be subjects for discipline, and all disciplinary actions are published on the Legal Service Commission website. Should similar models be adapted for the United States?48
4.Others take particular aim at the lack of transparency that now pervades nearly all facets of the lawyer disciplinary process.49 As Rhode and Woolley note, only four states—Florida, New Hampshire, Oregon, and West Virginia—treat all or most complaints about lawyers as a matter of public record. In many other states, a complaint becomes a matter of public record only if there is a finding of probable cause, and many complaints are dismissed without such a finding.50 Furthermore:
All but a few jurisdictions impose private discipline, and in many jurisdictions, it is the type of discipline most often imposed. When private discipline is imposed, the affected lawyer and complainant learn about the discipline, but the sanction and the proceedings themselves are maintained as confidential and typically cannot be accessed by the public.51
Proponents of secrecy insist that confidentiality is necessary to safeguard the integrity of investigations, promote administrative efficiency, and to ensure that lawyers are not harmed by unfounded or frivolous complaints.52 Others disagree. As Leslie Levin has explained:
[T]he secrecy surrounding most lawyer discipline in this country makes the fairness and effectiveness of the discipline process virtually impossible to ascertain. It seems clear that the unavailability of discipline information not only hurts consumers of legal services—who may be victimized by lawyers who have been secretly sanctioned in the past—but also affects the legal profession and the public at large.53
Is the current lack of transparency justifiable?
5.There is also the problem that, even if a lawyer has been subject to “public” discipline, crucial information may be “public” only in the limited sense it could theoretically be ferreted out by a savvy researcher scouring a bar website. But the information might not be known by, or practically available to, prospective clients—and even when it is available and actually located, it will typically be vague and incomplete (stating that a lawyer was subject to public discipline, say, but nothing about the lawyer’s underlying conduct or reason or reasons for the lawyer’s punishment). To address this 88problem, some suggest that lawyers ought to be required to provide information concerning their performance records to prospective clients. Other promising alternatives might be centralized databanks and toll-free hotlines that would provide information about judicial sanctions, disciplinary actions, and malpractice judgments akin to the online clearinghouse for physicians, required in about half the states. Would you support any such reforms? If so, how might they be achieved? If not, what alternative strategies would you recommend?
In principle, the sanctioning process is designed to serve three main functions: protection of the public, protection of the administration of justice, and preservation of confidence in the profession. In fact, much lawyer discipline seems to fit within three classic justifications of punishment: incapacitation, rehabilitation, and deterrence.
Jurisdictions now vary in the range and characterization of disciplinary remedies. Disbarment, which refers to a permanent withdrawal of the license to practice law, is the most uniform but also the most infrequent response. It is also not necessarily “permanent,” for reasons described below. Another common remedy, suspension, refers to a temporary prohibition on practice either for a specified period (usually ranging from several months to several years) or until compliance with certain specified conditions. Less stringent sanctions include public and private censures, reprimands, admonitions, warnings, cautions, probation, and mandatory education.
The ABA Standards for Imposing Lawyer Sanctions set forth a range of factors that should guide the imposition of penalties. Aggravating factors include prior disciplinary offenses, dishonest or selfish motive, multiple offenses, obstruction of the disciplinary proceeding, illegal conduct, and refusal to acknowledge the wrongful nature of the conduct. Furthermore, the ABA’s Model Rule for Lawyer Discipline instructs courts or boards to consider:
(1)whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2)whether the lawyer acted intentionally, knowingly, or negligently; [and]
(3)the amount of the actual or potential injury caused by the lawyer’s misconduct. . . .54
Mitigating factors include the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, timely efforts to make restitution, personal problems or disability, candor and cooperation in the disciplinary process, remorse, and the imposition of other sanctions.
89Some supreme courts rely heavily on those standards in imposing discipline; others have modeled their own standards on the ABA’s framework. The remaining jurisdictions generally have bright-line rules or presumptive sanctions for specific offenses, or alternatively, employ a case-by-case approach to all disciplinary decisions. An unfortunate effect of this regulatory patchwork is to create substantial inconsistencies in responses to similar conduct within and across jurisdictions.55
According to the limited data available, disciplined attorneys are disproportionately likely to practice alone or in small firms and represent individuals, rather than corporations or associations, often in the areas of family law, criminal defense, and plaintiff-side personal injury.56 Reflecting this focus, in California in 2000 through 2001, 23 percent of all lawyers were solo practitioners, but such practitioners were the target of 78 percent of disciplinary actions.57
A number of factors may account for that overrepresentation. Solo and small-firm lawyers have less collegial oversight. They also have less economic cushion, and fewer staff and technological resources to monitor deadlines, respond to client inquiries, and track client funds. There is also the question of whether these lawyers really do violate the rules more often—or, rather, whether there is a bias against solo and small-firm practitioners and/or these lawyers’ ethical lapses are disproportionately likely to be detected and punished.58 On the latter, common grounds for sanctions include mismanagement of trust funds, inadequate communication, and neglect of client matters, such as failure to perform services within prescribed periods. Underfunded disciplinary agencies generally find it cost-effective to target their limited resources to pursue these more cut-and-dry violations. By contrast, the kinds of violations that may be more common in large firms, such as discovery abuse, intentional foot dragging, or complicity in coverups, are harder to prove, and are more likely to benefit, rather than disadvantage, the instant client (rendering it less likely that the client will lodge a disciplinary complaint).59 Consider these factors as you assess the sanction-related issues that follow.
90A controversial issue related to lawyer sanctions involves permanent disbarment. As noted above, permanent disbarment is the most serious penalty. But, in some states, it’s a bit of a misnomer. While five states require all disbarments to be permanent and another eight allow permanent disbarment in some situations, most states allow disbarred attorneys to apply for reinstatement after a prescribed period, generally between three to seven year.60 Nationally, only about 10 percent of those who seek reinstatement or readmission succeed.61 But, between states, the frequency of reinstatement varies. Thus, over one ten-year period, Pennsylvania granted three-quarters of the applications from forty-four lawyers who sought to resume practice, while its neighbor, Delaware, granted none.62 Lawyers who are permanently disbarred in one jurisdiction can be readmitted in another and even those who have been disbarred more than once can apply for reinstatement.
According to David E. Johnson, Director of the Office of the Attorney of Ethics of the Supreme Court of New Jersey:
Disbarment in America today is in truth a myth. It is what I call the great white lie of disciplinary sanctions. Very simply, disbarment in 20th century America does not mean permanent disbarment in the majority of states. As a result, we see repeated instances of thieves, liars, perjurers, rapists and other serious criminal offenders applying for, and sometimes securing, reinstatement to the practice of law. The specter of ever reinstating an attorney who has bribed a judge to fix a case, for example, or has committed other heinous criminal acts, is repulsive to most honest, ethical lawyers. To the public the prospect is inconceivable. Why? Because the public thinks in terms that are straightforward and honest, plain and simple, especially when it comes to core values like the administrat[ion] of justice.63
In Johnson’s view, permanent discipline would provide a powerful deterrent lacking in the current system.64
Professor Ronald Rotunda disagreed. Given the absence of consensus on what misconduct is sufficiently abusive to preclude reinstatement, he 91contended that a system permitting permanent disbarment is likely to produce inconsistent and inequitable results. Rotunda argued:
Because the purpose of discipline is to protect the public, if the court finds that the reason to impose the discipline has changed, and no longer exists, or that the risk to the public of future harm no longer exists, then the court should also reevaluate the need for continued discipline. Wisdom never comes to some people; we should not reject it in others merely because it comes a little late. . . . The possibility of reinstatement is a good policy because it serves the laudable purpose of giving the lawyer an incentive to mend his or her old ways. To take away this possibility is to take away an incentive to reform. . . .
Proponents of permanent disbarment often claim that we should agree with their proposal because it will improve the public image of lawyers. We should resist that temptation: the organized bar should propose legal reforms because they are right, not because they might improve our public image. Lawyers engage in a lot of activities that are bad for their public image, from representing alleged Communists to representing alleged Nazis to using the Fourth Amendment in an effort to exclude probative evidence. If we do things that are proper but bad for the public image, we should respond by trying to educate the public. It is our job to lead, not to follow.65
When discipline is imposed, there is also a question of what should count in mitigation. Here, one recurring and urgent question is whether a punishment should be lighter because, at the time of the misconduct, an attorney was suffering from mental illness, alcoholism, or substance abuse. The ABA Standards for Imposing Lawyer Sanctions specify that “personal or emotional problems” serve as mitigating factors and that “mental disability or chemical dependency” do as well, so long as:
(1)there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2)the chemical dependency or mental disability caused the misconduct;
(3)the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4)the recovery arrested the misconduct and recurrence of that misconduct is unlikely.66
92Concerned with client protection, others have been reluctant to view such difficulties as adequate mitigation. According to HALT (Americans for Legal Reform), for example, it is the job of disciplinary agencies to make sure that the risk to clients is “eliminated or minimized, not excused. The kind of leniency [granted for lawyers] is not accorded elsewhere—one can hardly imagine a bank forgiving a teller’s theft of thousands of dollars and keeping them on the job based on excuses such as alcoholism, mental disability, or willingness to pay it back.”67
Courts, for their part, have been all over the map. According to two commentators: “While some courts have found mental impairment to be profoundly important in determining the appropriate sanction, others have been unwilling to consider mental impairment, even when it appears to be principally responsible for the misconduct.”68
Many also question whether disciplinary sanctions should be directed at law firms—or just individual lawyers. Currently, the Model Rules do not include a vehicle to sanction firms, rather than the lawyers employed therein, while only two states (New York and New Jersey) subject law firms to discipline, and even in these states, actual disciplinary actions against firms are rare.69
There is certainly precedent for subjecting law firms to the disciplinary system. Law firms can—and frequently are—held civilly liable in legal malpractice actions initiated by former clients, and firms can also be held responsible for improper pleadings, pursuant to Federal Rule of Civil Procedure 11(c)(1).70 Beyond that, corporate criminal liability has been an accepted part of American law for over a century, and other regulators frequently regulate (and punish) entities themselves and not just their constituent parts. Thus, for example, “[t]he stock exchanges and the Securities and Exchange Commission maintain disciplinary systems for brokerage houses, and not just for the individuals who work in those firms.”71
Law firm liability may also be broadly beneficial. As Professor Ted Schneyer has argued:
93Given the evidentiary problems of pinning professional misconduct on one or more members of a lawyering team, the reluctance to scapegoat some lawyers for sins potentially shared by others in their firm, and especially the importance of a law firm’s ethical infrastructure and the diffuse responsibility for creating and maintaining that infrastructure, a disciplinary regime that targets only individual lawyers in an era of large law firms is no longer sufficient. Sanctions against firms are needed as well.72
On the other hand, some argue that disciplining firms may be counterproductive because it enables regulators to take the “easy way out” and avoid identifying which lawyers are responsible for particular misconduct.73 As the general counsel for the Attorney Disciplinary Board of Michigan has put it, “if everybody’s responsible, nobody is responsible.”74 Beyond that, such a rule might stigmatize innocent lawyers—who just happened to be at the wrong firm at the wrong time. And the rule would also force consideration of a slew of difficult subsidiary questions. These include: Must lawyers from a previously-disciplined firm disclose that discipline when seeking admission pro hac vice? Must they disclose to malpractice liability insurance carriers? Will a new lawyer, who joins the firm post-discipline, inherit the taint? And, what standard should govern the firm’s liability: Should firm responsibility come automatically via something akin to respondeat superior, whenever a partner is sanctioned? Or, should a firm only be held responsible if it, itself, breaches a duty of reasonable oversight or supervision?75 Finally and critically, what sanction should be imposed on firms, particularly since organizations cannot be disbarred or suspended?76
1.Should law firms be penalized for lawyer misconduct? If law firms are to be sanctioned, what should be the disciplinary trigger? Consider Rule 5.1(a), which requires “reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.” Should firms be subject to sanctions for violating this rule?
942.Are you in favor of permanent disbarment?
3.As noted earlier, few complaints result in public discipline, and only a tiny minority end in disbarment.77 What implications, if any, does that have for the sanctioning process?
4.Is it problematic that lawyers guilty of unprofessional misconduct receive significantly different treatment across states?78 Should the bar seek greater consistency? How might it be achieved?
5.A recent study analyzed 500 disciplinary proceedings in thirty-three states. That study found that male and female lawyers were subject to different penalties, even for the same offenses. One of the study’s authors explained: “Where a woman might be suspended, a man is more likely to be put on probation. Looking at the data and just modeling for disbarment, we found women are more than twice as likely to be disbarred as men for the exact same offense.”79 In particular, the researchers found that women were disbarred 35 percent if the time, while men were disbarred 17 percent of the time, even holding the underlying violations constant.80 How, if at all, does this alter your view of permanent disbarment and David E. Johnson’s criticism, outlined above?
If you were chair of your state bar’s disciplinary committee, what sanctions, if any, would you recommend for the following misconduct?
Mahlon Perkins, Jr. and Joseph Fortenberry
Mahlon Perkins, Jr. was a partner at the Wall Street firm of Donovan, Leisure, Newton & Irvine. In order to avoid turning over certain documents during the discovery process in a contentious antitrust case, he falsely stated at a deposition that he had inadvertently destroyed them. He later repeated that statement under oath. He subsequently disclosed the perjury, was convicted of a misdemeanor, and served a one-month prison sentence. Joseph Fortenberry was a Donovan Leisure associate who was present at the deposition. He allegedly reminded Perkins that the documents were not destroyed, but remained silent after Perkins did not correct the misstatement.81
Daniel Cooper
Daniel Cooper was a thirty-eight-year-old law firm partner who pled guilty to charges of overbilling a client $550,000 over two years. He avoided jail by cooperating with authorities and received a criminal 95sentence of six months home confinement and 200 hours of community service. His defense was that he was under pressure to increase hours by a named law firm partner who was a “father figure” to him.82
Laura Beth Lamb
Laura Beth Lamb, a thirty-five-year-old lawyer, faced disciplinary charges for taking the 1985 California bar exam for her husband. At the time of the exam, she was seven months pregnant and suffering complications from chronic diabetes. Her husband, who had previously failed exams in both Texas and California, had bouts of rage and depression during which he threw heavy objects and threatened to kill Lamb and her unborn child if she did not take the test in his place. She agreed, disguised herself as her husband, and scored ninth out of some 7,000 applicants. After an anonymous tip revealed the matter to the state bar, she pleaded guilty to felony impersonation and deception. She received a $2,500 fine, probation, and a sentence of 200 hours of community service. When she was fired from her job at the SEC, she took a position as a legal secretary. She also divorced her husband and received psychological treatment.
In a letter to the court considering bar disciplinary charges, Lamb’s therapist concluded that she “was unlikely to do anything remotely like this again. [Her] prognosis for the future is good provided that she remains in therapy long enough to develop the psychic structures that have not yet matured. . . . This will require a long-term commitment.”83
Fawn Balliro
While on vacation in Tennessee, Fawn Balliro, an assistant DA in Massachusetts, was assaulted by Greg Knox, her then-boyfriend. In the attack, Balliro suffered injuries to her head and face, including a black eye and cuts to her lips. A neighbor, who heard Balliro’s screams, alerted the police, and Knox was arrested on misdemeanor assault charges. Subsequently, however, Knox pressured Balliro to drop the charges because he was on probation for drug offences, and, if he was convicted of this assault charge, he would be incarcerated, and no one would be available to support his two minor daughters. Balliro agreed, although she was unsuccessful in preventing Knox’s prosecution. When called as a witness at Knox’s eventual trial, however, Balliro took the stand and testified falsely that her injuries occurred while falling. The case against Knox was dismissed, and the Tennessee prosecutor informed the Massachusetts DA’s Office of her suspected perjury. The DA’s office put Balliro on leave until she agreed to undergo counseling and report her conduct to disciplinary authorities. She did so, and the bar recommended a public reprimand, partly on the basis of psychiatric testimony indicating that she was highly unlikely to commit such an act again.84
96Albert Boudreau
Albert Boudreau, a Louisiana lawyer, was criminally convicted of importing several magazines and a video of child pornography.85 Boudreau purchased the items in the Netherlands, where the magazines were lawful, and the models were of legal age to be photographed nude. However, they were underage by American definitions.
An important feature of the professional discipline regime under Rule 8.4, is that, in some instances, it permits a lawyer to be sanctioned for conduct that does not constitute a direct violation of the rules themselves. Specifically, Rule 8.4(b) subjects a lawyer to discipline for committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” even when that criminal act falls outside of the lawyer-client relationship. The theory is that certain criminal acts demonstrate a “lack of those characteristics relevant to law practice,” such as “violence, dishonesty, breach of trust, or serious interference with the administration of justice.” Rule 8.4, cmt. 2. In light of this rule and rationale, how would you deal with lawyer criminal conduct in the following cases?
a)A lawyer who willfully violated a court order to pay child support.
b)An attorney convicted of indecent exposure in a public restroom.
c)A law professor convicted of income tax violations.
d)A lawyer who stole $1,800 from her daughter’s Girl Scout cookie account.
e)A lawyer who, in a “one-time aberrational” act, hired three men to throw lye in the face of a woman who had threatened to break off their affair. The woman was blinded and the lawyer spent fourteen years in prison. After his release, the lawyer obtained work as a paralegal and married the woman.
f)A lawyer who pled guilty to leaving the scene of an accident in which he struck and killed a bicyclist. At his sentencing to a year in prison, he acknowledged knowing that he had hit a person and explained that he had panicked and fled the scene.
g)A lawyer with a substance abuse problem who pled guilty to supplying small amounts of methamphetamine and Ecstasy to friends. The lawyer had been drug and alcohol free for six years while working as paralegal and serving as a tutor for poor and homeless youths.
h)A chief counsel of a multinational corporation who resigned after being caught on film repeatedly stealing food from the company’s on-site cafeteria.
97i)A former New York Attorney General who patronized prostitutes even while his office was targeting prostitution.86
References: Rules 1.1, 1.3, 1.5, 3.1.
Since their inception, bar associations have been concerned with professional performance and its effect on public status, and bar ethical codes have long included provisions on competence. Currently, Rule 1.1 provides that a “lawyer shall provide competent representation to a client” and specifies that “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Almost no systematic research is available on the extent of incompetence among practicing attorneys or the strategies most effective in combating it. Further, as Chapter 16 notes, although we have some evidence that performance in law school correlates with performance in bar examinations, we have no idea how well either correlates with competence in practice. However, the fragmentary research available reveals that most qualities rated most relevant by practitioners and employing organizations are not learned in law school or tested on bar exams: e.g., fact-gathering, instilling confidence, effective oral expression, client communication, time management, diligence, judgment, and supervisory capability.
To address these problems, bar leaders generally propose a range of fixes, including skills-oriented bar exams, experiential law school courses, mentoring programs for new attorneys, support structures for solo and small firm practitioners, and improved in-house education by employers. (Yet again, however, almost no systematic effort has been made to assess the effectiveness of such initiatives.)
Another response to competence concerns has been Continuing Legal Education (CLE) for practicing lawyers. The push for CLE began roughly half-a-century ago in the aftermath of Watergate, largely in response to public criticism of lawyers’ ethics. Nearly all states now require practicing lawyers to participate in CLE programs, generally 98ranging from ten to twelve hours per year.87 In most jurisdictions, some of the coursework must focus on ethics. A minority demand coverage of other topics such as bias in the profession and substance abuse. Failure to stay in compliance can lead to a sizable fine or even a temporary suspension of a lawyer’s law license.
The imposition of CLE requirements has been relatively uncontroversial. After all, most other professions require practitioners to satisfy continuing education requirements. Education is generally thought to be a good thing. (As the Chair of the New York State Bar Committee on Lawyer Competency once put it: “How can you be against education? It’s like being against apple pie.”88) And it is said that the requirement also enhances public confidence in the profession.89 On the latter, at the time CLE requirements were first adopted, an influential report concluded that educational requirements would benefit the “repute of the profession . . . not only because of the improved competence of young lawyers but also because of recognition by the public that the Bar is making every effort to give it the very best of service.”90
Others, however, are less sanguine. Critics point out that CLE consumes millions of dollars and millions of hours of attorney time. Yet, few CLE programs make any significant effort at quality control, and some seem downright silly. (Some courses on sports law, for example, have occurred at sporting events, complete with hot dogs and peanuts.91) Additionally and more broadly, CLEs’ efficacy is unproven. In the words of a District of Columbia Task Force, which spent two years examining the issue and published a nearly 200-page report: “there have been no reliable, scientific demonstrations of the efficacy of continuing legal education.”92
1.Consider the following reform options. Do any seem preferable to the status quo?
992.Some suggest that state CLE requirements should be eliminated altogether. Would you support such a change?
3.Since 2003, nearly a dozen states have started to allow attorneys to count a small number of qualifying pro bono hours toward mandatory CLE requirements. As Rima Sirota observes: “This arrangement is justified both as providing a significant learning experience for the attorney, thus fitting within mandatory CLE’s educational mandate, and as encouraging additional pro bono work, thus making a dent in the justice gap not filled through traditional pro bono incentives.”93 Should more states allow pro bono work to substitute for CLE attendance? Or are there drawbacks to such substitutions?
Five decades ago, malpractice claims against attorneys were so rare and practitioners were so unconcerned about liability that insurance coverage was generally not available on the domestic market. That situation has dramatically changed. Definitive data is impossible to come by because insurance companies do not disclose payouts, and many settlements remain confidential. However, experts estimate that 3 to 12 percent of attorneys face malpractice exposure in a given year, that annual insurance payouts total approximately $3.5 billion, and that claims, particularly large claims, are on the rise.94
What accounts for the increase? Experts disagree. Some believe that incompetent representation is growing. As the profession becomes more competitive, as profit margins decrease, and as billable-hour expectations escalate, lawyers are under more pressure to handle matters beyond their expertise. Risky financial speculation, corporate scandals, and real estate and debt-related issues have also generated more civil liability. Others believe that the uptick is attributable to rising consumer expectations and greater willingness among lawyers (representing aggrieved clients) to bring such claims.
Despite the escalation, the barriers to initiating successful malpractice actions remain formidable. Some barriers are practical: Many individuals with potential legal malpractice claims will fail to 100recognize that they have been harmed and/or will fail to attribute the harm to an attorney error (typically referred to as the “attribution problem”).95 Then, of the subset of would-be claimants who overcome the attribution problem (in that they recognize that they have been harmed and identify the lawyer as the culprit), many will be unable or unwilling to incur the costs and aggravation associated with actually filing suit. From there, even if a would-be claimant decides that she does want to file suit, actually doing so is difficult. Clients need lawyers (one’s odds of success in pursuing a pro se legal malpractice claim is essentially nil), but, unless liability looks clear and damages are substantial, plaintiffs’ attorneys (who will generally assert the legal malpractice claim pursuant to a contingency fee) can be hard to find.96 Finally, many cases are only worth bringing if the errant lawyer has deep pockets or carries adequate malpractice insurance—and many lawyers have neither. Only Oregon and Idaho require their attorneys to carry malpractice insurance; in other states, some 6 to 60 percent of lawyers are uninsured.97
Legal barriers are no less daunting: Like tort plaintiffs generally, a legal malpractice plaintiff must show duty, breach, causation, and cognizable damages, each by a preponderance of the evidence. These elements are discussed below.
Duty
A plaintiff must first show that the defendant-lawyer owed her a duty of care. When the plaintiff asserting the legal malpractice claim is the lawyer’s former client, and the lawyer’s alleged breach occurred within the scope of representation, this element will be easily satisfied. When nonclients initiate legal malpractice suits, however, the duty question much becomes more difficult.
Traditionally, it was said that lawyers owed no duty to nonclients, even if it was clear that the lawyer’s services were intended to protect or to benefit the third party. See National Savings Bank v. Ward, 100 U.S. 195, 200 (1880) (“Beyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third party . . . .”). This bright-line privity requirement was often justified on the theory that extensive liability could would place an undue burden on the profession and would dissuade lawyers from offering clients vigorous representation. Some also said that it would be too difficult to “distinguish between harm resulting from inappropriate lawyer conduct on the one hand and, on the 101other hand, detriment to a nonclient resulting from a lawyer’s fulfilling the proper function of helping a client through lawful means.”98
Over the past several decades, however, many courts have started to relax this privity requirement, recognizing that nonclients are often affected by lawyers’ conduct and also foreseeably and reasonably rely on lawyers’ assurances.99 Reflecting this expansion, attorneys may now be liable to an estate’s intended beneficiary if errors in the decedent’s will prevent the beneficiary from receiving the bequest. Or, similarly, if the seller’s lawyer at a real-estate closing offers to record the deed for the buyer and subsequently fails to do so, the lawyer may be liable to the buyer, even if no lawyer-client relationship was ever established.100 Such holdings rely on agency principles, third-party beneficiary theories, or a balancing test that considers the predictability and certainty of harm, the defendant’s moral culpability, and the extent of the third-party’s justifiable reliance on the defendant’s conduct.101
Breach
After showing that the attorney owed her a duty of care, a malpractice plaintiff must next show that the attorney breached that duty of care. Each state formulates its particular standard of care a bit differently.102 Generally, however, breach can be shown if the lawyer failed to exercise or display the competence, skill, prudence, and diligence commonly exercised by lawyers in similar circumstances in the given locale.103 In applying this standard, the factfinder will compare the defendant-lawyer’s conduct to the conduct of other lawyers undertaking similar matters in the same jurisdiction, to see if the defendant-lawyer’s conduct conformed to what was customary or, alternatively, fell short.104
While that is easy enough to say, actually showing that the lawyer’s conduct deviated from the norm is often difficult. Since there is no neat book that compiles “legal custom” or catalogs what reasonably diligent and prudent lawyers in jurisdiction X do or don’t do when facing problem 102Y under circumstance Z, even establishing the standard of care generally requires competent expert testimony.105 If a plaintiff cannot find a qualified expert to testify to the relevant standard of care and opine that the lawyer departed from the standard, a legal malpractice case is likely to be dismissed, even prior to trial.
Cause and Injury
Finally, even if the plaintiff can show his or her attorney owed her a duty and breached that duty, causation (showing that the client would not be injured but-for the lawyer’s breach) remains a formidable obstacle. If the former attorney erred in a tort case, this standard requires a plaintiff to prove a case within a case, showing that the underlying claim had legal merit which the attorney’s error erased or diminished.106 That means, in a medical malpractice case, for example, where the defendant-lawyer failed to file suit within the applicable statute of limitations, the plaintiff-client must go through the time, expense, and trouble of showing that, if the medical malpractice claim had been timely filed and vigorously litigated, the plaintiff would have more-likely-than-not prevailed under the governing law. If the underlying claim had only dubious merit, causation on the legal malpractice claim will not be established. Likewise, where malpractice occurred in a criminal case, plaintiffs in many jurisdictions must show actual innocence in order to prevail.107
1.When it comes to showing that the attorney-defendant breached, the burden on plaintiffs would be substantially lighter if a rule violation constituted negligence per se, as unexcused rule and statutory violations typically constitute negligence per se in other contexts. See, e.g., Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920). Yet, the ABA has resisted such a shortcut. The Preamble to the Rules of Professional Conduct states:
[20]Violation of a rule should not itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached. . . . The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. . . . Nevertheless, since the Rules do establish standards 103 of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.
Notwithstanding that admonition, when it comes to referencing rule violations, states tend to take one of four approaches:
1)Hold that professional ethical standards conclusively establish the duty of care (i.e., the per se approach disclaimed by the Model Rules);
2)Hold that a rule violation establishes a rebuttable presumption that the lawyer has breached the standard of care;
3)Permit the rule violation to serve as some evidence that the lawyer has breached the standard of care (i.e., the approach accepted by the Model Rules);
4)Declare that ethical standards are inadmissible.108
Which approach is most sensible?
2.Many question the relationship between client-initiated legal malpractice proceedings and state-initiated attorney disciplinary actions—and whether, via principles of collateral estoppel, a court finding in the former can be used to simplify the latter, and vice versa. Generally, the answer is no. Professors Herbert Kritzer and Neil Vidmar explain:
A finding by a court in a [legal malpractice case] that a lawyer acted in a way that would constitute an ethics violation does not generally preclude a lawyer from contesting that before an ethics panel. The reason is that, in most states, an ethics panel requires “clear and convincing evidence” to find a violation, whereas, in most civil proceedings, the standard of proof is the less stringent “preponderance of the evidence.” . . .
For different reasons, collateral estoppel based on findings of a disciplinary panel does not apply in a subsequent [legal malpractice] civil proceeding. The primary reason for this is that the defendant in a [legal malpractice] lawsuit enjoys the right to a jury trial [and disciplinary actions are not tried before juries]. A second issue is that, in some states, for collateral estoppel to apply, both parties (including those in privity with parties) in the previous forum must be bound by that forum’s decision; generally, the plaintiff in a [legal malpractice] matter is in no sense bound by the findings of the previous disciplinary proceeding even if the plaintiff initiated the complaint that led to the discipline.109
3.What about insurance? As noted above, a significant problem with the status quo is a lack of adequate liability insurance coverage, which makes many lawyers effectively judgment proof—and also means many aggrieved former clients cannot find representation to assert malpractice claims, even when those claims are meritorious. Beyond assuring adequate compensation, insurance has other benefits too. Namely, when insurance 104companies are involved, they can monitor policyholders for risky practices and require loss prevention strategies.110 Critical preventive techniques include systems for identifying conflicts of interest and ticklers to remind lawyers of important deadlines.
Despite the benefits that would flow from making insurance mandatory, only Oregon and Idaho require all attorneys to carry malpractice insurance—and Idaho’s requirement is fairly new. In 2018, the Nevada State Bar petitioned the Nevada Supreme Court to adopt a liability insurance requirement. But with little discussion, the petition was denied.111
Some oppose making insurance mandatory. Opposition is particularly fierce among members of the bar who do not practice full-time or who could not readily afford liability premiums. Critics also worry that mandatory coverage would force lawyers to raise their rates, chill pro bono activity, and encourage frivolous claims.112
Supporters of mandatory insurance respond that, regardless of whether or not lawyers are insured, frivolous claims are exceptionally rare; no increase in claims occurred in Oregon, when it made liability insurance mandatory, and insurance premiums in Oregon are below those of comparable jurisdictions. Supporters also observe that, in many other countries, including Canada, Australia, and most of Europe, lawyers must maintain legal malpractice insurance as a condition of law practice.113 And, in many states, physicians and dentists must maintain professional insurance in order to maintain their professional licenses.114
Should legal malpractice insurance be mandatory? Why or why not?
4.Another option—which some view as a compromise approach—is to require attorneys who do not have malpractice insurance to disclose that fact. Supporting this approach, in 2004, the ABA adopted a Model Court Rule which compels lawyers to “disclose on their annual registration statements whether they maintain professional liability insurance.” About half the states require some form of disclosure regarding malpractice insurance, but only seven require disclosure directly to clients.115 South Dakota has the most robust direct disclosure rule, which requires lawyers to disclose directly to clients if they do not maintain at least $100,000 of insurance and to convey this information in every written communication with clients and in any advertising materials.116 Perhaps as a consequence, in South Dakota, only 2 105percent of practitioners are uninsured.117 Opponents of mandatory disclosure argue that the requirement constitutes a form of improper compelled speech and is misleading because the fact of coverage is not indicative of competence or even necessarily of the chances for recovery, given the exclusions written into most policies.118
Should states require uninsured lawyers to disclose their lack of insurance to prospective clients? Why or why not?
5.Even where the erring lawyer is uninsured or otherwise judgment proof, some compensation is generally available for fraud or dishonesty through bar-administered client security funds (which are subsidized by mandatory lawyer contributions). However, such funds pay only about 10 percent of the claims made.119 Is that defensible?
6.Under what circumstances should third parties be entitled to sue lawyers for malpractice? Should opposing parties have a claim against attorneys who violate ethical rules in contexts like discovery abuse?
7.Another serious impediment aggrieved clients face is initiating malpractice claims within the prescribed limitations period. Statutes of limitations vary in length, from as little as one year (e.g., Kentucky and Louisiana) to up to six years (e.g., Hawaii and Wisconsin). States also differ, when it comes to when the clock starts running. In some states, the clock starts running when the error or omission occurred—regardless of when the client became aware, or reasonably could have become aware, of the lawyer’s error or omission. In other states, the statute of limitations does not start running until the client became aware, or should have become aware, of the lawyer’s breach.120 Which approach is more justifiable?
8.Model Rule 1.8(h) imposes two limits on lawyers’ conduct vis-à-vis malpractice (or potential malpractice) claims. In particular, it provides that a lawyer “shall not”:
(1)make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2)settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
A comment to Model Rule 1.8(h) provides, however: “This paragraph does not . . . prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable 106and the client is fully informed of the scope and effect of the agreement.” Should lawyers be able to force clients into compelled arbitration?
9.As noted above, professional negligence can be very difficult to prove, in part because showing whether the lawyer’s performance deviated from the “custom” of the profession is difficult—and also because showing causation is tricky. In response, some commentators have argued that a preferable approach is to determine what constitutes reasonable performance under the totality of the circumstances, including clients’ legitimate expectations. That is the standard prevailing in other nations’ disciplinary as well as malpractice systems. Commentators have also argued for a less rigorous standard than but-for causation. One promising approach would be the test applicable in England and France, and used in certain medical malpractice cases in roughly twenty American jurisdictions. Under that “loss of chance” test, plaintiffs who demonstrate that the defendant’s substandard performance deprived them of a substantial possibility of recovery would be entitled to damages adjusted to reflect the likelihood of success.121 Would you favor one of these reforms?
The role of judges as the final arbiters of justice places them in one of the most critical positions in the American legal system. Therefore, how they conduct themselves in resolving disputes—particularly taking care to avoid bias and conflicts of interest—has significant implications for the legitimacy of the rule of law. In almost all jurisdictions, judges are fully qualified lawyers, licensed in the jurisdictions in which they sit, although some federal administrative judges, and others working in state and local tribunals (especially in rural areas) are not.122 Overall, judges are bound by a special body of ethics law that is designed to promote impartial adjudication.
Knowledge of judicial ethics is important because some lawyers will become judges (3 percent of lawyers were judges in the last statistical count123), and also because many lawyers end up practicing in front of judges in court and must therefore be attentive to any deviation from judicial ethics that might undermine the validity of a proceeding. From the law student’s perspective, judicial ethics also has immediate salience since the Multistate Professional Responsibility Examination, or MPRE, frequently tests judicial ethics under the ABA Model Code of Judicial Conduct. Indeed, the National Conference of Bar Examiners, which administers the MPRE, indicates that 2 to 8 percent of its test will typically cover judicial conduct, with an emphasis on maintaining impartiality and avoiding conflicts of interest. Although there is some 107focus on basic judicial competence (e.g., conducting the requisite amount of research before issuing an opinion), a review of MPRE exams reveals that most questions probe situations in which judges have actual conflicts, such as having a financial interest in a pending case, or engage in actions that raise the appearance of impropriety—for example, holding ex parte communications with litigants or engaging in outside activities that raise the specter of bias.
This section provides an overview of judicial ethics issues in relation to distinct sources of legal regulation.124 As with lawyers, the regulation of judges comes in different forms, which center around state and federal codes of conduct, in addition to judge-specific statutes and general ethical norms.125
Origins and Scope
In the U.S. federalist system, there are two levels of judges and hence two type of judicial codes. In state systems, where most judges work, ethical conduct is policed through state codes of judicial conduct adopted by state supreme courts. Most of these codes are based on the ABA Model Code of Judicial Conduct, originally adopted in 1924 after the first Commissioner of Major League Baseball, hired to clean up the sport in the wake of the infamous Chicago White Sox cheating scandal, was revealed to be cheating himself: taking a salary for his Commissioner work while still hearing cases as a full-time judge.126 Soon thereafter, the Judicial Conference of the United States, composed to monitor the federal bench, passed a resolution stating that federal judges would look to the ABA Model Code as the source of ethical guidance for federal judges.127 After the ABA’s 1972 revision of the Model Code, the Judicial Conference followed suit by adopting a full-blown Code of Conduct for United States Judges in 1973.
In the main, the federal judicial Code of Conduct generally tracks the ABA Model Code; the following analysis will therefore concentrate on the ABA version, which was most recently revised in 2007 and has been adopted in some form by thirty-five states (with another ten actively considering its adoption). There are, however, some notable differences between the ABA Model Code and the Judicial Conference’s federal Code, which merit attention. For one, the federal Code—while embracing general principles of upholding the independence of the bench, avoiding the appearance of impropriety, and acting impartially—has not adopted extensive prohibitions on bias, prejudice, and harassment, which were 108incorporated in the 2007 version of the ABA Model Code (although the federal Code does prohibit affiliation with discriminatory organizations).
Additionally, unlike the ABA Code, which (when adopted by states) applies to all judges in a jurisdiction (including those sitting on the apex court), the federal Code entirely exempts Supreme Court Justices from its purview. The rationale provided for this exemption is that, unlike judges in lower federal courts, which were established by Congress, U.S. Supreme Court Justices derive their authority directly from the Constitution, which provides that they may serve as long as they demonstrate “good behavior” and may only be removed by impeachment.
This ethical exemption has led to significant controversies, most recently after the nomination hearings of Brett Kavanaugh, whose attack on a woman accusing him of sexual assault as an “orchestrated political hit, fueled with apparent pent-up anger about President Trump,” caused court watchers to file an ethics complaint against him on the grounds that his testimony demonstrated bias and lack of integrity. The complaint was dismissed by the Judicial Conference’s Committee on Judicial Conduct on the ground that, although Kavanaugh was a sitting circuit judge at the time of the hearings, the ethics rule did “not apply to a judge who has resigned from a covered judicial office and thereafter been confirmed as a Supreme Court Justice.”128 In controversial earlier cases, Supreme Court justices have declined to recuse themselves despite prior connections with parties and positions.129
General Principles
The Model Code of Judicial Conduct is organized around four basic canons that address the major areas of ethical concern.
Canon 1 of the Code requires that “a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” The rules delineated under this canon are focused on protecting the reputation of the bench as a pillar of fairness from misconduct by judges, while also stressing that public confidence may be “eroded by improper conduct that creates the appearance of impropriety,” noting that a judge’s duty to promote public confidence “applies to both the professional and personal conduct of a judge.”130 While actual improprieties covered by Canon 1 include violations of law and ethics, the “test for appearance of impropriety is whether the conduct would create in reasonable minds a 109perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”131
Canon 2 is organized around the mandate that a “judge shall perform the duties of judicial office impartially, competently, and diligently.” This mandate requires that judges give “precedence” to their judicial duties (treating judging as the full-time job it is),132 while performing the functions of the judicial role with competence and diligence (engaging in sufficient preparation and devoting the necessary time to perform crucial functions),133 and taking care to protect the core value of a litigant’s right to be heard.134
A critical focus of Canon 2 is on action that judges must take or avoid in order to ensure impartial adjudication. Rule 2.2, often considered one of the most important, states that “[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” This rule is frequently cited in relation to concerns about a judge’s ideological bias and requires that, despite a judge’s “personal philosophy,” she “must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”135 As will be discussed below, Rule 2.2, in combination with Rule 2.4’s prohibition on permitting “family, social, political, financial, or other interests or relationships” from influencing judicial conduct, form the cornerstones of judicial conflicts of interest law. Canon 2 also broadly proscribes ex parte communications,136 as well as extrajudicial statements likely to impact the outcome of a case.137 Recognizing the pivotal role judges play in observing the ethical behavior of others, Canon 2 further requires a judge to report other judges or lawyers whose conduct violates the relevant codes and “raises a substantial question” about the judges or lawyers’ honesty, trustworthiness, or fitness.”138
Canon 3 requires that a “judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.” Canon 3 requires a judge to minimize outside activities that interfere with job duties or undermine independence,139 and to avoid conflicting roles like serving on other governmental bodies outside of the judicial role.140 The central focus of this canon is on financial conflicts of interest. In this regard, Canon 3 110prohibits a judge from serving as a paid arbitrator or mediator,141 practicing law,142 or serving as a manager or employee in an outside business, although a judge “may hold and manage investments of the judge and members of the judge’s family,” unless they “interfere with the proper performance of judicial duties.”143 Rule 3.13 prohibits judges from accepting “any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”144 Rule 3.13 does, however, permit judges to take small honoraria with little intrinsic value, like plaques and fellowships available to nonjudges, as well as other benefits (like special pricing or random prizes) available to the public at large.145
Canon 4 of the Code requires that a “judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.” This canon applies to judicial participation in the partisan political campaigns of others, as well as setting rules of conduct for judges running for their own elected judicial positions. In this regard, the canon prohibits judges from endorsing political candidates, speaking on behalf of or holding office in political organizations, personally soliciting campaign contributions, or otherwise overtly engaging in partisan political activities.146 Although a candidate for an elected judicial position may establish a campaign committee to run for that position, a judicial candidate is required to ensure that the committee only accept reasonable contributions within appropriate time frames and to comply with laws requiring the disclosure of donor identity.147 In running for an elected position, a judicial candidate is required to ensure that other persons involved in campaigning do not violate ethics rules and that the candidate act “at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.”148
Disqualification and Discipline
The primary mechanism of enforcing judicial ethics is recusal. Under Rule 2.11(A) of the ABA Model Code, a “judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” The rule lists several circumstances requiring disqualification, including when a judge has a personal bias; has personal knowledge of facts in dispute; knows that the judge or a close family member (including a domestic partner) is a party, lawyer, material 111witness, or has an economic interest in the proceeding; knows that a party or lawyer in a proceeding has given large contributions to the judge’s campaign; or has made a public statement that “commits or appears to commit” the judge to a particular result.149 The bases for judicial disqualification may be waived by the parties after full disclosure by a judge.
In most cases, recusal is triggered when judges are asked by parties to voluntarily recuse. However, as we have seen in other contexts—like the decision by Attorney General William Barr to not recuse himself in the investigation by Special Counsel Robert Mueller into Russian interference in the 2016 presidential election despite having taken a position on its merits prior to joining the Justice Department—what happens when a judge determines that his or her recusal is not warranted is a murky area. Typically, when there is a basis for judicial disqualification, a litigant must file a motion for judicial recusal with very judge overseeing case, which—if rejected—could place the litigant in an awkward situation going forward in the case. In practice, that means that lawyers are often reluctant to file recusal motions and even when they do, if judges refuse, there is little lawyers can do to force them out of a case.
Federal law imposes recusal rules on all judges, including Supreme Court Justices—although compliance is again largely left to the discretion of the judges themselves. Under 28 U.S.C. § 455(a), recusal is mandatory for any “justice, judge, or magistrate judge of the United States . . . in any proceeding in which his impartiality might reasonably be questioned.” In addition, under § 455(b), federal judges must recuse when they have designated conflicts, including: demonstrating personal bias or prejudice; having knowledge of disputed facts; having served as a lawyer on the matter in private or government practice, or having served as a material witness; possessing a financial interest either directly or through a close family member; or having a close family member acting as a party, lawyer, or witness in the proceeding.150 The recusal statute permits the parties to waive judicial conflicts under the general “impartiality” provision of subsection (a) but prohibits party waiver of any enumerated conflict under subsection (b).151
At the state level, most courts have created committees to review charges of serious ethics violations and impose discipline up to and including removal. However, there are no analogous ethics enforcement bodies for federal judges, who may only be removed through impeachment.
1122.Other Forms of Judicial Control
As mentioned above, in many jurisdictions in the United States, judges are elected at all levels, even to the state supreme court. There are currently eighteen states with partisan elections for judges (i.e., judges run in affiliation with a political party), while twenty-one states have nonpartisan elections. Of these, seven states hold partisan elections for state supreme court (including Alabama, Illinois, and New York), while sixteen hold nonpartisan elections. Obviously, in states with elected judges, the ballot box offers a form of judicial control: If voters do not like the job a judge is doing, they can vote the judge out. The downside, of course, is that elected judges, particularly in partisan election states, may think of themselves as representing specific interest groups, rather than the public interest, and shape their jurisprudence toward the satisfaction of defined constituencies.
We have already mentioned the federal recusal law as a source of judicial regulation outside the scope of the ethics codes. Federal statutes contain other legal requirements bearing on judges appointed to the federal and, in some instances, the state bench. Most of these regulations track what is contained in the ABA Model Code although they impose different penalties. For instance, 28 U.S.C. § 454 makes it a “high misdemeanor” for a federal judge (including a Supreme Court Justice) to engage in the practice of law. Section 458 prohibits nepotism by proscribing the appointment of anyone related within the degree of first cousin to a sitting judge on the same court, state or federal (other than the Supreme Court).
In addition to federal statutes regulating judicial conduct, some courts have held that judicial conflicts of interest violate a litigant’s due process rights. The most prominent case in this regard was Aetna Life Insurance Co. v. Lavoie , 475 U.S. 813 (1986) , in which the Supreme Court invalidated a state appellate court judgment on due process grounds when the judge who wrote the 5–4 opinion had a financial interest in the case. Specifically, the judge, whose opinion affirmed a financial judgment against the insurer Aetna for failure to pay on legitimate claims, was simultaneously a plaintiff in a similar action against another insurer—which agreed to settle on favorable terms after the Aetna decision set precedent against insurers. Some lower courts addressing the same issue have held that due process violations only occur if the judge who should have been disqualified cast the decisive vote. 152
More drastic remedies than recusal are possible for a judge’s ethics violations. During a capital case before the Guantánamo military commissions, the judge, Air Force Colonel Vance Spath, was secretly negotiating with the DOJ for a job as an immigration judge (IJ) after he retired from the military. In his application, Judge Spath emphasized his role in the high-profile terrorism case, and he submitted one of his 113 judicial orders as his writing sample. 153 Explaining why this conduct created a conflict of interest, the D.C. Circuit Court of Appeals noted that “the Attorney General himself is directly involved in selecting and supervising immigration judges,” and the Attorney General simultaneously “was a participant in Al-Nashiri’s case from start to finish.” 154 Both judicial and lawyer ethics prohibit judges from negotiating for a job with a party before their court, because it creates the appearance of partiality. 155 In this case, the remedy was drastic: The court vacated all 460 of Judge Spath’s orders issued during the two-plus years he had been negotiating for the IJ position. 156 Astonishingly, the military judge who replaced Judge Spath was also negotiating for an post-retirement immigration judgeship. Upon revelation of that fact, she was swiftly removed from the case. 157
Back in the realm of lawyer ethics, Model Rule of Professional Conduct 1.12 spells out special disqualification rules for former judges. Section (a) prohibits a lawyer from representing a client in a matter “in which the lawyer participated personally and substantially as a judge or other adjudicative officer . . . unless all parties to the proceeding give informed consent, confirmed in writing.” Disqualification of a former judge under (a) may not disqualify the former judge’s entire law firm if the firm institutes a proper screen and provides written notice to the parties and tribunal.158 As noted above, Rule 1.12(b) prevents a judge from negotiating for employment with parties or lawyers currently appearing in front of that judge.
1.Protecting impartiality and combatting bias are the touchstones of judicial ethics rules, designed to prevent actual misconduct and the appearance of impropriety that could undermine public confidence in the bench. Bias based on race, gender, and other categories is clearly contrary to ethical norms, but was not explicitly addressed in earlier versions of the Model Code of Judicial Conduct. In 2007, the ABA addressed this omission, adding Rule 2.3(b), which states that a “judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment 114 based upon race, sex, gender, religion, national origin, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.” Comment 2 lays out a nonexhaustive list of acts constituting bias or prejudice, which include: “epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based on stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics.”
Can and should Rule 2.3 target implicit bias—subconscious stereotyping—that may manifest itself in unfair outcomes for specific groups? There is a large body of empirical evidence supporting claims of widespread judicial bias that has significant negative consequences for minority groups. For example, one study found that judges set bail amounts for African-American defendants 25 percent higher than for white defendants, controlling for distinguishing factors.159 A national study of judicial attitudes found that “judges harbored strong to moderate negative implicit stereotypes against Asian-Americans and Jews, while holding favorable implicit stereotypes towards Whites and Christians.”160 How should judicial ethics address these systemic disparities?
2.While implicit bias may be hard to detect on an individual basis, other forms of conduct sanctioning discrimination are out in the open, raising concerns about a judge’s impartiality. This arises with respect to judges holding memberships in private organizations, like country clubs, that discriminate against women and people of color by excluding them from membership. In 2011, the chief bankruptcy judge from the Middle District of Tennessee was reprimanded for holding membership in Nashville’s white-male-only Belle Meade Country Club.161 The ABA Model Code of Judicial Conduct Rule 3.6 explicitly prohibits a judge’s “membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation,” and also proscribes the knowing use of “the benefits or facilities” of such an organization, except that attendance at a discriminatory organization’s event is permitted if it is “an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.”162
3.In order to uphold the requirement that a judge decide cases based only on facts in evidence, the Model Code of Judicial Conduct Rule 2.9(A) states that a “judge shall not initiate, permit, or consider ex parte communications . . . .” There are, however, a number of exceptions, all designed to permit judges to effectuate their duty of diligence. One of these exceptions allows a judge to “obtain the written advice of a disinterested 115expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties . . . and affords the parties a reasonable opportunity to object and respond . . . .”163 Another exception permits a judge to confer separately with parties to facilitate settlement.164 Beyond this narrow band of communications, a judge is generally barred from independent fact investigation, which would include Internet searches to illuminate facts at issue.165
4.Do you think the following situations raise concerns of actual or apparent ethical impropriety affecting judicial impartiality?
5.When judges are elected to office on the basis of financial contributions by supporters, it raises serious concerns about fundamental objectivity in adjudication. How should judges deal with cases that implicate the interests of campaign donors?
Justice Lloyd A. Karmeier was elected to the Illinois Supreme Court in 2004 in a way that aroused significant controversy. 168 In the late 1990s, State Farm was subject to a large class action, where plaintiffs alleged that it violated the terms of its own policy by failing to pay for car replacement parts of “like kind and quality” when its insureds were involved in accidents. In the 1999, the case went to trial, and a jury returned a $1 billion verdict against the insurer. State Farm, predictably, appealed, and the case— Avery v. State Farm —made its way to the Illinois Supreme Court. The Illinois Supreme Court, whose members are elected in partisan elections, heard oral arguments in Avery in 2003—but (inexplicably) left the matter unresolved for two years. During this period, a seat opened on the Illinois Supreme Court, and Lloyd Karmeier, then a Republican circuit court judge, ran to victory buoyed by nearly $5 million in campaign contributions; at the time, the election set a record as the most expensive judicial election in the country. The problem, though, was that, of those donations, $350,000 came directly from State Farm and its employees and over $1 million came from industry groups in which State Farm was a member. Upon ascending to the Illinois Supreme Court, Justice Karmeier rejected calls for his recusal from Avery (the Illinois Supreme Court said whether to recuse was up to him), and he cast the deciding vote to reverse the lower court judgment against State Farm—saving the company some $1 billion. 169
Undaunted, the Avery plaintiffs then sued State Farm under a RICO theory, in a case called Hale v. State Farm , arguing that the insurance company had run a corrupt racketeering enterprise to elect Karmeier—essentially paying him to reverse the legitimate verdict against the insurer. 170
In advancing this novel argument, the plaintiffs relied on Caperton v. A.T. Massey Coal Co. , 556 U.S. 868 (2009) , in which the U.S. Supreme Court ruled that a West Virginia Supreme Court judge’s refusal to recuse after receiving more than $3 million in campaign contributions (three times the amount spent by the judge’s own campaign) from an executive of a coal company appealing a $50 million verdict against it, violated the plaintiffs’ due process rights. In its ruling, the Supreme Court stressed that the contributions in the judge’s election, which was decided by fewer than 50,000 votes, had “a significant and disproportionate influence on the outcome.” 556 U.S. 868 . In Hale , the plaintiffs argued that the State Farm contributions were as significant as those in Caperton , revealing additional contributions allegedly funneled by State Farm to Karmeier in secret that, when added to 117 the contributions already known, constituted nearly 75 percent of Karmeier’s fundraising total. The Hale case settled on the eve of trial in 2018 for $250 million. 171
A study of every state supreme court decision in all fifty states over four years found that elected judges are more likely to issue pro-business decisions as the amount of campaign contributions from business interests increases—but only in partisan elections. 172 Given that nearly all elected judges receive significant contributions from entities with cases that are actually or potentially pending before their courts, what should the threshold amount requiring disqualification be? Should there be a bright line rule? How would you craft it?
6.As Justice Karmeier’s case illustrates, judicial recusal operates both through bright line rules—a judge who has served as a lawyer on a matter now in front of her must recuse—and also through a general standard requiring disqualification if the judge’s impartiality “might reasonably be questioned.” How should judges interpret this general standard?
In Cheney v. United States District Court , 542 U.S. 367 (2004) , the Sierra Club and Judicial Watch sued Vice President Dick Cheney to force him to reveal records of which organizations had attended a Cheney-led task force on energy policy that ultimately made recommendations favorable to the oil industry. Three weeks after the Supreme Court agreed to hear the case, Cheney and Justice Scalia went duck hunting together in Louisiana, and Scalia flew with Cheney on Air Force Two to the hunting grounds. Scalia rejected the Sierra Club’s motion to recuse himself on impartiality grounds, arguing that, because the suit targeted Cheney in his professional, not personal capacity, and they were just friends, the recusal rule did not apply. 173 Moreover, Scalia argued that his recusal would harm the Supreme Court by bowing to political pressure and encouraging “so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons.” 174 With that logic, Scalia voted with the majority in favor of Cheney’s refusal to disclose the task force records.
From 2015 to 2017, there were 223 recusals by Supreme Court Justices, 88 by Justices Kagan and Sotomayor, mostly due to their former work as Solicitor General and Second Circuit judge, respectively. 175
7.What should happen when a lawyer deliberately selects co-counsel in order to force judicial disqualification? This is what happened in McCuin v. Texas Power & Light Co. , 714 F.2d 1255 (5th Cir. 1983) . In that case, defense counsel in a class action discrimination suit against Texas Power & Light Company added as co-counsel the brother of the presiding judge’s wife and 118 then promptly moved for the judge’s recusal. After a hearing on the matter, the court (acting through another judge to whom the case had been reassigned) found that defense counsel had intentionally manufactured the conflict to disqualify the presiding judge, who was viewed as sympathetic to the plaintiffs’ case. The Fifth Circuit Court of Appeals ruled that a lawyer who intentionally manufactures a disqualifying judicial conflict should himself be disqualified and the original judge reassigned. 176 Do you think this is the right result? Consider the fact that plaintiffs’ counsel elected to sue in a jurisdiction where it knew it would draw the sympathetic judge in the first place.
8.Is it fair that Justices of the United States Supreme Court, who sit at the pinnacle of the judicial system, are nonetheless exempt from its ethical rules? As Justice Roberts argued in his 2011 report on the state of the federal judiciary
Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body. . . . The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court. 177
Many people are not so confident as Roberts that the Justices can exercise the appropriate amount of personal discipline in policing their own conflicts. Indeed, a number of legislative proposals have attempted to make the Supreme Court more ethically accountable. Most recently, Representative John Sarbanes from Maryland introduced H.R. 1 , the For the People Act of 2019, which would (among a lengthy list of other voting and campaign finance reforms) require the Judicial Conference to “issue a code of conduct, which applies to each justice and judge of the United States . . . .” 178 The bill passed the House but was bottled up in the Senate. In 2017, Congresswoman Louise Slaughter from New York co-authored the Supreme Court Ethics Act, requiring Justices to follow the federal Code of Conduct, on the heels of revelations that, between 2009 and 2013, Justices Breyer, Roberts, and Alito voted in favor of 70 percent of companies filing amicus briefs in cases before the Court, in which the Justices held a financial interest. 179 In 2011, Senator Chuck Grassley introduced a bill that would have created an Office of the Inspector General of the Judicial Branch, appointed by the Chief Justice of the Supreme Court, with the power to conduct investigations of alleged misconduct by all federal judges, including Supreme Court Justices themselves.
119What is your view of these legislative proposals? Do you find compelling reasons for self-regulation within the federal judiciary and the exemption of Supreme Court Justices from ethical oversight?
9.With regard to electoral constraints on judicial conduct, recall the controversy over Aaron Persky, a California state court judge who generated intense controversy in 2016 when he sentenced a male Stanford student to a lenient six-month sentence for sexually assaulting an unconscious woman (the maximum sentence was fourteen years). In issuing the sentence, Persky opined that the defendant would “not be a danger to others” and noted that “a prison sentence would have a severe impact on him,” while saying nothing about the impact on the victim. In the outrage that followed, a petition drive was launched to recall Persky, who had been elected in 2003 to the Santa Clara County Superior Court. Although a petition was circulated by over 90 law professors against the recall, objecting to the use of recall to police judicial misconduct, the recall succeeded and Persky was forced from the bench in 2018—the first recall of a sitting judge in 80 years.180 Do you think this was an appropriate sanction for what Persky did? Does it threaten the notion of judicial independence?
1 However, about two-thirds of states require lawyers to belong to the state bar association as a condition of practice. The American Bar Association (ABA) is a national organization, in which membership is not mandatory.
2 Nat’l Ctr. for State Courts, Inherent Powers Resource Guide, http:// www.ncsc.org/ Topics/ Court-Management/ Inherent-Powers/ Resource-Guide.aspx .
3 See, e.g., Turner v. Ky. Bar Ass’n, 980 S.W.2d 560 (Ky. 1998) ; Fears v. Va. State Bar, 2000 WL 249247 (Va. Cir. Ct. 2000) ; see also Nathan M. Crystal, Core Values: False and True , 70 Fordham L. Rev. 747 (2001) ; Charles W. Wolfram, Toward a History of the Legalization of American Legal Ethics—The Modern Era , 15 Geo. J. Legal Ethics 205 (2002) .
4 Peter Joy, Making Ethics Opinions Meaningful: Toward More Effective Regulation of Lawyers’ Conduct , 15 Geo. J. Legal Ethics 313 (2002) .
5 United States v. Gellene, 182 F.3d 578 (7th Cir. 1999) . The case was the subject of a book, Milton C. Regan, Eat What You Kill: The Fall of a Wall Street Lawyer (2005).
6 18 U.S.C. § 207 .
7 Courts have generally upheld an agency’s inherent power to discipline lawyers by limiting or disbarring them from practicing before it. However, federal agencies cannot impose other disciplinary sanctions such as fines, and no consensus exists about how to reconcile conflicts between state rules of conduct and agency rules.
8 8 C.F.R. § 1003.102(g) .
9 Id . § 1003.102(c) .
10 Meinhard v. Salmon, 249 N.Y. 458, 464 (1928) .
11David Luban, Fiduciary Legal Ethics, Zeal, and Moral Activism, 33 Geo. J. Legal Ethics 275, 282–96, 294 (2020).
12 Stymieing the effectiveness of this mechanism, however, many lawyers lack malpractice insurance, as described in detail below.
13 Professionalization 129 (Howard M. Vollmer & Donald L. Mills eds., 1966); Deborah L. Rhode, Moral Character as a Professional Credential , 94 Yale L.J. 491 (1985) .
14 Jerold S. Auerbach , Unequal Justice: Lawyers and Social Change in Modern America 40 (1977).
15 For histories of the Canons, see James M. Altman, Considering the A.B.A.’s 1908 Canons of Ethics , 71 Fordham L. Rev. 2395 (2003) ; Susan D. Carle, Lawyers’ Duty to Do Justice: A New Look at the History of the 1908 Canons , 24 Law & Soc. Inquiry 1 (1999) .
16 Am. Bar Ass’n, Model Rules of Prof’l Conduct , http:// www.americanbar.org/ groups/ professional_responsibility/ publications/ model_ rules_ of_ professional_ conduct.html .
17 David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times , 9 Geo. J. Legal Ethics 31, 44–45 (1995) ; Deborah L. Rhode, Ethical Perspectives on Legal Practice , 37 Stan. L. Rev . 589, 647–48 (1985) .
18 For critiques of the current structure, see Benjamin Barton, The Lawyer-Judge Bias in the American Legal System (2011); Jonathan R. Macey, Occupation Code 541110: Lawyers, Self-Regulation, and the Idea of a Profession , 74 Fordham L. Rev. 1079 (2005) .
19 Note, The Pakistani Lawyers’ Movement and the Popular Currency of Judicial Power , 123 Harv. L. Rev. 1705 (2010) .
20 Richard Parnham, The Clementi Reforms in a European Context—Are the Proposals Really That Radical? , 8 Legal Ethics 195 (2007) .
21 For discussion of other countries’ approach to lawyer discipline, see Deborah L. Rhode & Alice Woolley, Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada , 80 Fordham Law Review 2761 (2012) .
22 Eli Wald, Federalizing Legal Ethics, Nationalizing Law Practice, and the Future of the American Legal Profession in a Global Age , 48 San Diego L. Rev. 489 (2011) (collecting sources).
23Council of Bars and Law Societies of Europe, Charter of core principles of the European legal profession & Code of conduct for European lawyers (2019).
24 Am. Bar Ass’n, Percep tions of the U.S. Justice System 77 (1999).
25Mass. Rules of Prof’l Conduct R. 8.3.
26Vt. Rules of Prof’l Conduct R. 8.4.
27 In the first two decades following the Himmel decision, there were only four other prosecutions for failure to report misconduct. See Lance J. Rogers, Conference Panelists Call for Clarification of Obligation to Report Peer Misconduct , 23 ABA/BNA Lawyers’ Manual Prof’l Conduct 297 (2007). For the value of complaints, see Mary T. Robinson, A Lawyer’s Duty to Report Another Lawyer’s Misconduct: The Illinois Experience , 2007 Prof’l Lawyer 47 .
28 See Rogers, supra note 27, at 298; see also In re Riehlmann, 891 So. 2d 1239, 1248 (La. 2005) (concluding that a “reasonable” lawyer would “form a firm belief that the conduct in question had more likely than not occurred”).
29 For a case history of Bohatch, see Leslie C. Griffin, Bohatch v. Butler & Binion , in Law Stories: Legal Ethics (Deborah L. Rhode & David Luban eds., 2006). Jacobson v. Knepper & Moga , 706 N.E.2d 491 (Ill. 1998) , reaches a different result than Wieder , holding that associate whistleblowing is adequately protected under whistleblower laws and that, as a consequence, associates do not need to be able to bring retaliatory discharge suits to protect their rights.
30 Conn. Bar Ass’n, Comm. on Prof’’l Ethics, Op. 96–20 (1996); see also Ass’n of the Bar of the City of N.Y. Formal Op. 2017–2 (concluding that a “lawyer who learns that another lawyer has fraudulently billed a client has a duty to report the other lawyer to the appropriate disciplinary authority . . . but this reporting duty is limited by the lawyer’s duty not to reveal client confidences without the client’s informed consent”).
31 In particular, Rule 5.2 provides:
(a)A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b)A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
32 No. 17-CV-3392 (VEC), 2018 WL 204273 (S.D.N.Y. June 8, 2018) .
33Missouri Informal Ethics Op. 2006–0074 (2006) (inaccurate advertising); New Mexico Ethics Op. 2005–2 (2005) (unreasonable fee); South Carolina Ethics Op. 02–15 (2002) (breach of confidentiality).
34Illinois Ethics Op. 01–04 (2002) (failure to segregate funds); Rhode Island Ethics Op. 2006–04 (2006) (failure to timely file divorce judgments); Texas Ethics Op. 632 (2013) (use of impermissible trade name).
35 Skolnick v. Altheimer & Gray, 730 N.E.2d 4 (Ill. 2000) .
36For examples of those limited occasions when citizens can be punished for their failure to report crimes, see, for example, Cal. Penal Code § 152.3 (2000) (making it a misdemeanor punishable by a fine of up to $1,000 and a year in jail to witness any assault of a minor under the age of fourteen without notifying the police); Wash. Rev. Code Ann. § 9.69.100 (2008) (defining the failure to report the violent crime or sexual assault against child as a gross misdemeanor).
37See Jay Sterling Silver, Can the Law Make Us Be Decent?, N.Y. Times, Nov. 7, 2012, at A27 (“No matter how grave the danger or how minor the effort needed to prevent harm, citizens are not required to provide help.”).
38 Gerard Lynch, The Lawyer as Informer , 1986 Duke L.J. 491, 531 .
39 Id. at 535 .
40 Id. at 537–38 .
41 Am. Bar Ass’n Comm’n on Evaluation of Disciplinary Enforcement, Report to the House of Delegates: Lawyer Regulation for a New Century (1992).
42 Arthur F. Greenbaum, The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform , 16 Geo. J. Legal Ethics 259, 271 (2003) .
43 Lynn Bernabei & Jasen Zuckerman, Protect the Whistleblower , Nat’l L.J., June 19, 2006, at 26.
44 These facts are modeled on In re Riehlmann , 891 So. 2d 1239, 1242 (La. 2005) .
45 See Richard L. Abel, Lawyers in the Dock: Learning From New York’s Disciplinary Cases (2008); Richard L. Abel, Lawyers on Trial: Understanding Ethical Misconduct 475 (2011); Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession 163–64 (2000); Deborah L. Rhode, The Trouble with Lawyers 114–15 (2015) .
46 Legal Ombudsman Scheme Rules, Rule 5.38.
47 Leslie C. Levin, Building a Better Lawyer Discipline System: The Queensland Experience , 9 Legal Ethics 187, 193–94 (2006) .
48 See Rhode, Trouble with Lawyers , supra note 45, at 116–19; Ted Schneyer, On Further Reflection: How ‘Professional Self-Regulation’ Should Promote Compliance with Broad Ethical Duties of Law Firm Management , 53 Ariz. L. Rev, 577, 619–28 (2011) .
49 Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline , 20 Geo. J. Legal Ethics 1 (2007) .
50Id. at 19.
51Id. at 20.
52Id. at 2.
53Id.
54Am. Bar Ass’n, Model Rules for Lawyer Disciplinary Enforcement R. 10(C).
55 For examples of inconsistency, see Stephen Gillers, Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public , 17 N.Y.U. J. Legis. & Pub. Pol’y 485 (2014) .
56 Levin, supra note 49, at 6; Geoffrey C. Hazard, Jr. & Ted Schneyer, Regulatory Controls on Large Law Firms: A Comparative Perspective , 44 Ariz. L. Rev. 593, 601–02 (2002) .
57State Bar of Cal., Investigation and Prosecution of Disciplinary Complaints Against Attorneys in Solo Practice, Small Size Law Firms and Large Size Law Firms 7–8 (2001).
58See Levin, supra note 49, at 6 (recounting the widespread belief that there is a “bias” in the disciplinary system against solo practitioners and those who practice in small firms).
59This fact is important, since clients, and former clients, supply the primary source of disciplinary complaints. See Leslie C. Levin, The Ethical World of Solo and Small Law Firm Practitioners, 41 Hous. L. Rev. 309, 315 (2004).
60Rule 25 of the ABA Model Disciplinary Rules recommends the possibility of readmission after at least five years.
61 Brian Finkelstein, Should Disbarment be Permanent? , 20 Geo. J. Legal Ethics 587, 590–91 (2007) . For the 10 percent figure, see G.M. Filisko, Disbarred Lawyers Who Seek Reinstatement Have a Rough Road to Redemption , ABA J., Aug. 1, 2013.
62 Chris Osher & Brad Burnsted, Disbarment Not End for Lawyers , Pittsburgh Trib. Rev. , Feb. 17, 2003, at A1; Finkelstein, supra note 61, at 595.
63 David E. Johnson, Permanent Disbarment: The Case For . . . , Prof’l Lawyer , Feb. 1994, at 22.
64 Id. at 26 .
65 Ronald D. Rotunda, Permanent Disbarment: The Case Against , Prof’l Lawyer , Feb. 1994, at 22–24.
66ABA Standards for Imposing Lawyer Sanctions, Standard 9.32(i); accord State ex rel. Counsel for Discipline of Neb. Supreme Court v. Thompson, 652 N.W.2d 593, 600 (Neb. 2002) (“To establish depression as a mitigating factor, the respondent must show (1) medical evidence that he or she is affected by depression, (2) that the depression was a direct and substantial contributing cause to the misconduct, and (3) that treatment of the depression will substantially reduce the risk of further misconduct.”).
67HALT (Americans for Legal Reform), Attorney Discipline 16 (1988).
68Todd Goren & Bethany Smith, Depression As A Mitigating Factor in Lawyer Discipline, 14 Geo. J. Legal Ethics 1081, 1081 (2001).
69 See generally Elizabeth Chambliss & David B. Wilkins, A New Framework for Law Firm Discipline , 16 Geo. J. Legal Ethics 335 (2003) .
70 Fed. R. Civ. P. 11(c)(1) provides that if a “court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.”
71 Ted Schneyer, Professional Discipline for Law Firms? , 77 Cornell L. Rev . 1, 13 (1991) .
72Id. at 11. For a contrary view, see Julie R. O’Sullivan, Professional Discipline for Law Firms? A Response to Professor Schneyer’s Proposal, 16 Geo. J. Legal Ethics 1 (2002).
73 Law Firm Discipline: Easy Way Out or Getting More Bang for the Buck , 15 ABA/BNA Lawyers’ Manual on Prof’l Conduct 401 (1999) (quoting Robert J. Saltzman and Diane McShea).
74Helen Gunnarsson, Should Discipline Rules Be Extended to Entities?, Bloomberg Law, Feb. 5, 2019 (quoting Mark Armitage).
75 Id . (quoting Mark Armitage).
76 See Symposium, How Should We Regulate Large Law Firms? Is a Law Firm Disciplinary Rule the Answer? , 16 Geo. J. Legal Ethics 203, 206–07 (2002) (comments of William P. Smith, III).
77 See Barton , supra note 18, at 254–56.
78 Rhode, Trouble with Lawyers , supra note 45, at 111–14.
79Y. Peter Kang, Female Attys More Likely to Be Disbarred, Study Says, Law360, June 9, 2016.
80 Jessica Kennedy et al., Does Gender Raise the Ethical Bar? Exploring the Punishment of Ethical Violations at Work , Vanderbilt Sch. of Mgmt. Res. Paper No. 2770012 (Apr. 25, 2016).
81 James B. Stewart, Jr., The Partners: Inside America’s Most Powerful Law Firms (1983) (describing the Donovan Leisure case).
82 In re Cooper, 613 N.Y.S.2d 396 (App. Div.1994) .
83 In re Lamb, 776 P.2d 765, 767 (Cal.1989) .
84 In re Balliro, 899 N.E. 2d 794 (Mass. 2009) .
85 In re Boudreau, 815 So. 2d 76 (La. 2002) .
86 California Bar Targets Deadbeat Dads , Nat’l L. J., July 12, 1995; Company’s In-House Lawyer is Censured for Stealing Food From Office Cafeteria , 25 ABA/BNA Lawyers’ Manual Prof’l Conduct 252 (2009); Leigh Jones, Dazed and Confused: Discipline For Addicted Attorneys Varies Widely From State to State , Nat’l L.J., Sept 20, 2010, at 1, 4; Richard Marosi & Anne Gorman, L.A. Gets Tough on Corrupt Lawyers , L.A. Times , Nov. 10, 2003, at B1; Norimitsu Onishi, A Tangle of Affairs of the Heart , N.Y. Times , Apr. 21, 1997, at B8; Dean Slater, If Spitzer Loses Law License, a Safety Net Will Be Removed , Wall St. J. , Mar. 13, 2008; see also In re Steed, 131 P.3d 231 (Utah. 2006) . For an historical overview of the bar’s treatment of such cases, see Rhode, Moral Character , supra note 13, at 552–54.
87Rima Sirota, Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case, 78 La. L. Rev. 547, 552 (2018) (reporting that forty-six states impose mandatory CLE requirements).
88Christi Harlan, Continuing Law Education Faulted by State Bar Groups, Wall St. J., Oct. 12, 1988, at B1, B8 (quoting Francis Musselman, who went on to question continuing education’s utility).
89Joseph Marino, Ask the Professor: Why Do We Need Continuing Legal Education?, Above the Law, Jan. 8, 2015.
90Joint Comm. on Continuing Legal Educ. of the Am. Law Inst. and the Am. Bar Ass’n, Continuing Legal Education for Professional Competence and Responsibility: The Report on the Arden House Conference 70 (1959).
91Deborah L. Rhode & Lucy Buford Ricca, Revisiting CLE: Is Compulsory Passive Learning Building Better Lawyers?, 22 Prof. Law. 2 (2014); see also Rhode, Trouble with Lawyers, supra note 45, at 102–07.
92Task Force on Mandatory Continuing Legal Educ., Report to the Board of Governors of the District of Columbia Bar 26–28 (1995). Research in other professions such as medicine and engineering has also found no relationship between performance and participation in continuing education. Id.
93Sirota, supra note 87, at 579 (offering the conventional view).
94 For the uptick, see Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 1.6 (2012 ed.) . For various figures, see Herbert M. Kritzer & Neil Vidmar, When Lawyers Screw Up, Improving Access to Justice for Legal Malpractice Victims 4 (2018); Leslie C. Levin, When Lawyers Screw Up , 32 Geo. J. Legal Ethics 109, 112 (2019) .
95Kritzer & Vidmar, supra note 94, at 12.
96 Nora Freeman Engstrom, Sunlight and Settlement Mills , 86 N.Y.U. L. Rev . 805, 856–58 (2011) (outlining various obstacles); Levin, supra note 94, at 114 (underscoring that legal malpractice cases are “much too complex for unrepresented litigants to handle successfully on their own”).
97 Levin, supra note 94, at 113.
98 Restatement (Third) of the Law Governing Lawyers § 51 , cmt. b (2000); Goodman v. Kennedy , 556 P.2d 737 (Cal. 1976) .
99 See Geoffrey C. Hazard, Jr., et al., The Law of Lawyering § 5.06 (4th ed. 2015 supp.) (discussing the “many inroads” that “have been made on the ‘citadel’ of privity”).
100 Restatement (Third) of the Law Governing Lawyers § 51 , cmt. e (2000).
101 John Leubsdorf, Legal Malpractice and Professional Responsibility , 48 Rutgers L. Rev. 101, 111, 130–35 (1995) ; Malpractice: Liability to Nonclients , 27 ABA/BNA Lawyers’ Manual Prof’l Conduct 755 (2011).
102 See, e.g., Estate of Fleming v. Nicholson, 724 A.2d 1026, 1028 (Vt. 1998) (“[T]he standard of care to which an attorney is held in rendering professional services is the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent attorney practicing in the jurisdiction of Vermont.”); Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989) (“A lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney.”); Martinson Bros. v. Hjellum, 359 N.W.2d 865, 872 (N.D. 1985) (“The standard of care to which an attorney is held in the performance of his professional services is that degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the State.”).
103 See Restatement (Third) of the Law Governing Lawyers § 52 (2000) .
104Id. § 52, cmt. b.
105Restatement (Third) of the Law Governing Lawyers § 52, cmt. g (2000) (“[A] plaintiff alleging professional negligence . . . ordinarily must introduce expert testimony concerning the care reasonably required in the circumstances of the case and the lawyer’s failure to exercise such care. . . . A defending lawyer may also introduce expert evidence on what constitutes care in the circumstances of the case or to support a defense . . . .”). There is an exception, akin to the common knowledge exception in the legal malpractice context, for clear-cut violations (e.g., if the lawyer missed a court deadline, failed to file suit within the applicable statute of limitations, or failed to identify a lien on a title when preparing a title opinion).
106 Engstrom, supra note 96, at 857.
107Levin, supra note 94, at 111.
108 Kritzer & Vidmar , supra note 94, at 58 – 59.
109 Id.
110 Tom Baker & Rick Swedloff, Regulation by Liability Insurance: From Auto to Lawyers Professional Responsibility , 60 UCLA L. Rev . 1412 (2013) ; Anthony E. Davis, Legal Ethics and Risk Management: Complementary Visions of Lawyer Regulation , 21 Geo. J. Legal Ethics 93 (2007) .
111Levin, supra note 94, at 120.
112 Id . at 121.
113 Leslie C. Levin, Lawyers Going Bare and Clients Going Blind , 68 Fla. L. Rev . 1281, 1282 (2016) .
114 Id . at 1282–83 .
115Am. Bar Ass’n, State Implementation of ABA Model Court Rule on Insurance Disclosure, https://www.americanbar.org/content/dam/aba/administrative/professional_respons ibility/chart_implementation_of_mcrid.pdf.
116Levin, supra note 94, at 125.
117 South Dakota Reform Works , HALT Legal Reformer , Fall 2002, at 5.
118 Lance J. Rogers, Two States Pass Insurance Status Rules; California Bar Eschews Required Disclosure , 23 ABA/BNA Lawyers’ Manual Prof’l Conduct 531 (2007) .
119 Am. Bar Ass’n Ctr. for Prof’l Responsibility, Standing Comm. on Client Protection, Survey of Lawyers’ Funds for Client Protection 2005 – 2007, at 27 (2008).
120Kritzer & Vidmar, supra note 94, at 183–84.
121 Lawrence W. Kessler, Alternative Liability in Litigation Malpractice Actions: Eradicating the Last Resort of Scoundrels, 37 San Diego L. Rev. 401 (2000) ; Leubsdorf, supra note 101, at 111–19.
122Matt Ford, When Your Judge Isn’t a Lawyer, The Atlantic, Feb. 5, 2017.
123 Clara Carson & Jeeyon Park, The Lawyer Statistical Report: The U.S. Legal Profession in 2005 (2012).
124For a comprehensive analysis, see Steve Berenson, Judicial Ethics and Conduct (2019).
125 Tom Liniger, Green Ethics for Judges , 86 Geo. Wash. L. Rev . 711, 718–23 (2018) .
126 Ronald Rotunda, Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code , 34 Hofstra L. Rev . 1337 (2006) .
127 Liniger, supra note 125, at 721.
128In re: Complaints under the Judicial Conduct and Disability Act, Memorandum of Decision, J.C. Nos. 10–18–90038–67, 90069–107, 90109–122, at 12 (Aug. 1, 2019).
129 Cheney v. Dist. Court of Dist. of Columbia, Memorandum of Mr. Justice Scalia, 541 U.S. 913 (2004) (declining to recuse himself despite having gone on a hunting trip with Vice President Cheney, a party to the case); Laird v. Tatum, Memorandum of Mr. Justice Rehnquist, 409 U.S. 824 (1972) (declining to recuse himself despite having given Congressional testimony on the issue under litigation while working for the Department of Justice). The Cheney case is discussed in the Notes and Questions, infra.
130Model Code of Judicial Conduct R. 1.2, cmt 1.
131 Id. R. 1.2, cmt 6.
132Id. R. 2.1.
133 Id. R. 2.5.
134Id. R. 2.6.
135 Id. R. 2.2, cmt 2.
136Id. R. 2.9
137 Id. R. 2.10.
138Id. R. 2.15.
139 Id. R. 3.1.
140 Id. R. 3.4.
141 Id. R. 3.9.
142 Id. R. 3.10.
143 Id. R. 3.11.
144 Id. R. 3.13(A).
145 Id. R. 3.13(B).
146 Id. R. 4.1.
147 Id. R. 4.4.
148 Id. R. 4.2(A).
149 Id. R. 4.2(A)(1)–(4).
150 28 U.S.C. § 255(b) .
151 Id. § 255(e) .
152Bradshaw v. McCotter, 796 F.2d 100 (5th Cir. 1986).
153 In re Al-Nashiri, 921 F.3d 224, 227 (D.C. Cir. 2019) . The defendant, Abd Al-Rahim Hussein Muhammed Al-Nashiri, is accused of orchestrating the bombing of the U.S.S. Cole and the failed bombing of the U.S.S. The Sullivans .
154 Id. at 235–36 .
155 Rule 1.12(b); Scott v. United States, 559 A.2d 745 (D.C. 1989) (en banc) (holding that a trial judge in a federal criminal trial who was applying for a job in the DOJ must recuse himself under the Code of Judicial Conduct and the federal recusal statute and that failure to do so requires a new trial for defendant).
156 Id. at 238, 240 .
157 Id. at 233 .
158 Rule 1.12(c).
159 Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Setting , 46 Stan. L. Rev . 987 (1994) .
160 Justin D. Levinson, Mark W. Bennett & Koichi Hioki, Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes , 69 Fla. L. Rev . 63, 63 (2017) .
161 Rob Harris, Federal Judge Reprimanded for Membership in Discriminatory Country Club , Golf Disp. Resol. , Dec. 8, 2011, at http://www.golfdisputeresolution. com/?p=1045 .
162 Model Code of Judicial Conduct R. 3.6(B).
163 Id. R. 2.9(A)(2).
164 Id. R. 2.9(A)(4).
165 Id. R. 2.9, cmt 6.
166 Joe Conason, The Ties that Bind Scalia and Olson , N.Y. Observer , Dec. 18, 2000; Robert L. Jackson, Calls for Recusal of Thomas, Scalia Are Undue, Experts Say , L.A. Times , Dec. 13, 2000, at A25.
167Adam Liptak, Ginsburg Has a Few Words About Trump, N.Y. Times, July 11, 2016, at A1.
168 Billy Corriher & Brent DeBeaumont, Dodging a Billion-Dollar Verdict , Ctr. for Am. Progress (Aug. 14, 2013), https://www.americanprogress.org/ issues/ courts/ reports/ 2013/ 08/ 14/ 72199/ dodging-a-billion-dollar-verdict/ .
169Avery v. State Farm, 835 N.E.2d 801 (2005).
170First Amended Class Action Complaint, Hale v. State Farm, No. 3:12-cv-0060-DRH0SCW (S.D. Ill. Nov. 4, 2014).
171Allison Frankel, Behind $250 Million State Farm Settlement, a Wild Tale of Dark Money in Judicial Elections, Reuters, Sept. 5, 2018.
172 Michael S. Kang & Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions , 86 N.Y.U. L. Rev . 69 (2011) .
173 Memorandum of Justice Scalia, Cheney v. U.S. District Court, 542 U.S. 367 (2004) .
174 Id. at 18.
175 Fix the Court, Explaining the Unexplained Recusals at the Supreme Court (2017) .
176 McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1257 (5th Cir. 1983) .
177 Lincoln Caplan, Does the Supreme Court Need a Code of Conduct? , New Yorker , July 27, 2015.
178 H.R. 1 § 964 (2019).
179 Fix the Court, Blind Trust: How Supreme Court Justices Are Ruling in Favor of the Publicly Traded Companies Whose Securities They Own (2015).
180 Maggie Astor, California Voters Remove Judge Aaron Persky, Who Gave a 6-Month Sentence for Sexual Assault , N.Y. Times , June 6, 2018 .
The Advocate’s Role in an Adversary System
The preamble to the ABA’s Model Rules of Professional Conduct begins with the observation that “[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” In addition, of course, lawyers have obligations to the organization that employs them, and public sector lawyers serve societal interests. These multiple responsibilities can impose significant ethical, financial, and other career pressures.
The Rules recognize as much. According to their Preamble, lawyers’ obligations “are usually harmonious. . . . In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living.” Perhaps the most important question that lawyers must answer for themselves is how to rank these responsibilities. What should a lawyer do when representing a client effectively conflicts with the lawyer’s own sense of “remaining an upright person,” either because the lawyer disapproves of the client’s ends or has qualms about the means necessary to pursue them effectively? Law students and practicing attorneys are sometimes discomfited to discover that there is no settled answer to this question, either in the bar’s traditions or in the rules governing the profession. Yet this ambiguity is not altogether surprising, nor should it be disturbing. The fact that American lawyers have approached their roles in different ways through different traditions is in some respects a positive reflection of the diversity and creativity of the bar.
A.The “Neutral Partisanship” Conception of the Lawyer’s Role
Many issues in legal ethics that raise the most perplexing questions—zealous advocacy, confidentiality at the expense of innocent third parties, and the demand that lawyers divorce their own sense of right and wrong from their pursuit of client objectives—all seem to flow from a small group of principles. In the excerpt that follows, William Simon explores these principles, which set out a familiar vision of legal ethics, in the context of advocacy.
122William H. Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics”
1978 Wisconsin Law Review 29, 36–38 (1978).
The first principle of conduct is the principle of neutrality. This principle prescribes that the lawyer remain detached from his client’s ends. The lawyer is expected to represent people who seek his help regardless of his opinion of the justice of their ends. In some cases, he may have a duty to do so; in others, he may have the personal privilege to refuse. But whenever he takes a case, he is not considered responsible for his client’s purposes. Even if the lawyer happens to share these purposes, he must maintain his distance. In a judicial proceeding, for instance, he may not express his personal belief in the justice of his client’s cause.
The second principle of conduct is partisanship. This principle prescribes that the lawyer work aggressively to advance his client’s ends. The lawyer will employ means on behalf of his client which he would not consider proper in a non-professional context even to advance his own ends. These means may involve deception, obfuscation, or delay. Unlike the principle of neutrality, the principle of partisanship is qualified. A line separates the methods which a lawyer should be willing to use on behalf of a client from those he should not use. Before the lawyer crosses the line, he calls himself a representative; after he crosses it, he calls himself an officer of the court. Most debates within the Ideology of Advocacy concern the location of this line. . . .
The principles of neutrality and partisanship describe the basic conduct and attitudes of professional advocacy. The two principles are often combined in the terms “adversary advocacy” or “partisan advocacy”. . . . However, it should be noted that the two principles are distinct in important respects. Many occupational roles, for instance the bureaucrat and the doctor, are expected to serve the general public without regard to the ends of those who seek their help. Yet, they are not expected to engage in the partisan pursuit of individual ends. On the other hand, political representatives are expected to be partisan, but they are not expected to serve all comers without regard to their ends. Only the lawyer seems to insist on making a virtue of both neutrality and partisanship.
1.In the above excerpt, Professor Simon uses the terms “neutrality” and “partisanship.” Other writers conceptualize these two principles in different terms. Another writer adds a principle of non-accountability: “When acting 123as an advocate for a client . . . a lawyer is neither legally, professionally, or morally accountable for the means used or the ends achieved.”1
2.Further, some commentators argue that these principles constitute the “standard conception of the lawyer’s role.”2 In so doing, they sometimes point to a famous speech from 1820, in which the British barrister Lord Henry Brougham declared:
An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.3
Lord Brougham’s speech prompted vigorous opposition at the time, and its premise continues to provoke controversy. Contemporary critics have objected that there is nothing “standard” about conceiving the lawyer’s role entirely in terms of these principles; many lawyers would soften these principles.4 For this reason, we identify these principles as the “Neutral Partisanship” framework without suggesting that it is the preferred—or the “standard”—view of legal ethics.
However we label them, the principles play out in different ways depending on the lawyer’s role. Simon, Schwartz, and Brougham associate them with the role of advocate, which is discussed in Chapter 7 below. For the lawyer’s role as negotiator, see Chapter 12. And for the role of counselor or advisor, see Chapter 10.
1.The Codes and Neutral Partisanship
To what extent do the Rules of Professional Conduct embody Neutral Partisanship? Although the ABA’s 1969 Code of Professional Responsibility has long been superseded by the Model Rules, its terminology is significant for understanding current rules.
The Code’s principal text of partisanship is Canon 7: “A lawyer should represent a client zealously within the bounds of the law.” The “zeal” terminology comes from Canon 15 of the Code’s predecessor, the ABA Canons of Professional Ethics: “The lawyer owes ‘entire devotion to the interest of the client, warm zeal in the maintenance and defense of 124his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied.” In other words, “zeal” signifies the principle of partisanship.
The Rules of Professional Conduct includes no requirement of zeal as such, although the Rules’ Preamble does provide that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” The closest the Rules themselves come to promoting zeal is the requirement in Rule 1.3: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 explains:
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.
Some commentators have expressed alarm that “downgrading” the zeal requirement from the text of a binding rule to a non-binding comment signals a weakened commitment.5 In practice, however, many lawyers believe that “zeal” continues to be the ethical standard that the Model Rules embody and that lawyers have no right to refrain from effective tactics even if they find them morally offensive.
As for the principle of neutrality, the Rules embody it explicitly in Rule 1.2(b): “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
2.Neutral Partisanship and the Question of Inadvertent Disclosure
In the discussion below, we address the question of how a lawyer should handle confidential material inadvertently sent from her adversary. This analysis helps to bring the above discussion into sharper relief, presenting a straightforward conflict between the ethics of Neutral Partisanship and what we might consider the ethics of fair play. The following two readings refer to the now-outmoded technology of fax machines, but the question they raise—whether to exploit inadvertent disclosure of confidential material by another party—is perhaps even more relevant in the world of digital technologies, where the possibility 125of inadvertent disclosure includes emails, shared files, thumb drives, and social media.6
ABA Formal Opinion 92–368 Inadvertent Disclosure of Confidential Materials
(November 10, 1992).
The Committee has been asked to opine on the obligations under the Model Rules of Professional Conduct of a lawyer who comes into possession of materials that appear on their face to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that the materials were not intended for the receiving lawyer. . . . This opinion is intended to answer a question which has become increasingly important as the burgeoning of multi-party cases, the availability of xerography and the proliferation of facsimile machines and electronic mail make it technologically ever more likely that through inadvertence, privileged or confidential materials will be produced to opposing counsel by no more than the pushing of the wrong speed dial number on a facsimile machine.
A satisfactory answer to the question posed cannot be drawn from a narrow, literalistic reading of the black letter of the Model Rules. But it is useful, and necessary, to bear in mind the thoughts in the Preamble to the Model Rules that “many difficult issues of professional discretion . . . must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules,” and that “the Rules do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.” In that larger, and more fundamental, framework, the Committee’s views, expressed in this opinion, have been informed by the importance the Model Rules give to maintaining client confidentiality, . . . the similarity between the circumstances here addressed and other conduct the profession universally condemns, and the receiving lawyer’s obligations to his client.
Giving due weight to each of the foregoing considerations, it is the view of the Committee that the receiving lawyer, as a matter of ethical conduct contemplated by the precepts underlying the Model Rules, (a) should not examine the materials once the inadvertence is discovered, (b) should notify the sending lawyer of their receipt and (c) should abide by the sending lawyer’s instructions as to their disposition. . . .
The concept of confidentiality is a fundamental aspect of the right to the effective assistance of counsel. As reflected in each iteration of the rules of professional responsibility, the obligation of the lawyer to 126maintain and to refuse to divulge client confidences is virtually absolute. . . .
If the Committee were to countenance, or indeed encourage, conduct on the part of the receiving lawyer which was in derogation of this strong policy in favor of confidentiality, the Committee would have to identify a more important principle which supports an alternative result. As the Committee examines the potentially competing principles, we conclude that their importance pales in comparison to the importance of maintaining confidentiality. . . .
[I]t might be urged that a receiving lawyer has an obligation to maximize the advantage his client will gain from careful scrutiny of the missent materials. While the “zealous” representation of Canon 7 of the Model Code of Professional Responsibility does not appear in haec verba [in these exact words] in the Model Rules, it could be argued that a lawyer’s “commitment and dedication to the interests of the client,” referred to in the Comment to Model Rule 1.3 (calling on a lawyer to act with “reasonable promptness and diligence”), includes an obligation to capitalize on an error of this sort on the part of opposing counsel.
However, there are many limitations on the extent to which a lawyer may go “all out” for the client. . . . For example, if during a lunch break in a deposition, lawyer B left notes or other materials in a conference room, either in an unlocked briefcase or on the conference room table, there is no respectable argument that competent and diligent representation requires or even permits lawyer A, arriving back from lunch early, to review the materials to which he now has easy access. Nor if, after a closing at lawyer A’s office, lawyer B accidentally leaves a file or a briefcase behind would it be proper to assert that lawyer A could take advantage of this inadvertence and rifle the file or inspect the briefcase before returning it. Indeed, in the view of the Committee that lawyer would have an obligation to notify the lawyer who left her briefcase that it had been found. Finally, if in positioning an overhead projector on a shared counsel table in a courtroom during a recess, court personnel inadvertently move the prosecutor’s notes into a position in front of the defense counsel’s place at the table, it seems clear to the Committee that defense counsel would have an absolute obligation to return the materials without any examination or copying.
The analysis of this issue as an ethical matter should not obscure some more practical considerations that suggest the correct course for the receiving lawyer is to inform sending lawyer and return the documents. The immediate reaction of receiving counsel might be that the use of the missent materials can only serve to advantage his client. Nonetheless, it is clear there are advantages to doing just the opposite. First, instances of inadvertent production of documents tend not to occur only on one side. While a lawyer today may be the beneficiary of the opposing lawyer’s misstep, tomorrow the shoe could be on the other foot. . . . [Furthermore], the credibility and professionalism inherent in 127doing the right thing can, in some significant ways, enhance the strength of one’s case, one’s standing with the other party and opposing counsel, and one’s stature before the Court.
Monroe H. Freedman, “The Errant Fax”
Legal Times (Jan. 23, 1995).
From her fax machine to yours comes the smoking-gun document that could win your client’s case. But it’s addressed to her co-counsel, labeled “LAWYER-CLIENT PRIVILEGE” and “WORK PRODUCT,” and a cover sheet demands that it be returned by any unintended recipient. What should you do?
Don’t read it, says the American Bar Association’s ethics committee in Opinion 92–368. Inform the lawyer who sent it and obey her instructions about what to do with the document.
But two state ethics committees have read the ABA opinion and have found it unpersuasive. The Ohio committee, in its Opinion 93–11, concluded that the unintended recipient is free to use the document, but that he should inform opposing counsel about it. And just last month, the Maine ethics committee, in Opinion 146 (Dec. 9, 1994), reached a similar conclusion. A California court, in Aerojet-General Corp. v. Transport Indemnity Insurance, 22 Cal.Rptr.2d 862 (1993), went further, holding that the lawyer may keep the document and need not inform opposing counsel.
My vote is with the authorities recommending using the document, and I agree with the California court that opposing counsel need not be informed. Here’s why. . . .
[The ABA Committee’s] analysis begins with the admission that a “satisfactory answer cannot be drawn from a narrow, literalistic reading of the black letter of the Model Rules.” A translation from the doublespeak is that there is no rule that supports the “satisfactory answer” that the committee wanted to reach.
So, the committee went to the preamble of the Model Rules for some of the most Delphic guidance this side of Delphi. . . . Having cut loose from the rules themselves, the ABA committee was free to analogize at will—to the importance of client confidences, . . . similar conduct that the profession “universally condemns,” and even “the receiving lawyer’s obligations to his client.” The committee also relied on “professionalism” and on the lawyer’s “personal conscience and the approbation of professional peers.” . . .
The committee’s best argument for its result is the ethic of confidentiality. . . . I find the committee’s contention [that returning the errant fax is required by confidentiality] misplaced. The obligation of confidentiality runs, after all, between the lawyer and her client—not 128between the lawyer and your client. And that’s what we’re talking about here.
Your adversary has been careless in protecting her client’s confidences. Therefore, says the committee, you should protect her client’s confidences. As fabled Harvard Law Professor Austin Scott used to say, “I understand everything but the ‘therefore.’ ”
At the same time, the committee overrides the search for truth. Surely, there are values, including the lawyer-client privilege, that take precedence over truth-seeking. But you—the adversary of the party who holds the privilege—are not bound by that privilege.
Also devalued is the ethic of zealous representation. The Model Rules have replaced the Model Code’s “zeal” with “commitment and dedication.” But University of Pennsylvania Law Professor Geoffrey Hazard Jr., Reporter for the Model Rules, in his (and co-author W. Hodes’) The Law of Lawyering, has noted that zealousness continues to be “the fundamental principle of the law of lawyering.” . . .
As the ABA committee says, zealousness has always been subject to express limitations. But that is hardly an excuse for adding unexpressed limitations, as the committee does. You have received the document that could win your client’s case, yet the committee holds that you should give more weight to your adversary’s obligation of confidentiality than to your own obligation of zealous representation. . . .
With regard to the secondary issue—informing opposing counsel of her blunder—that is an issue that is covered by a black-letter rule. Model Rule 1.6 says that a lawyer “shall not reveal information relating to representation of a client unless the client consents . . .” (The exceptions are inapplicable here.) The most efficacious use of the document might be to impeach the adverse party at trial—a tactic that could be defeated by premature disclosure.
Of course, if the client consents, the lawyer can send back the document—although I would hope that the lawyer would first make his own determination of whether the document is in fact privileged. Even a faxed invitation to lunch is likely to have a cover sheet with the standard language about lawyer-client privilege and threats of cruel and unusual punishment for any unauthorized use. How do you know that a document is privileged unless you read it?
And where is the committee’s stopping point? What if opposing counsel’s blunder is not a misdirected document but a failure to assert the lawyer-client privilege in court, or a failure to plead the statute of limitations, or an initial offer of settlement far in excess of what your client is willing to take? How far is the current vogue for “professionalism” to take us in sacrificing our clients’ interests to protect opposing counsel from embarrassment or a malpractice action?
1291.In its 2002 amendments to the Model Rules, the ABA addressed the inadvertent disclosure issue by requiring, under Rule 4.4(b):
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.7
Comment 3 to this Rule adds that whether the lawyer chooses to return the document unread or delete electronically stored information “is a matter of professional judgment ordinarily reserved to the lawyer.”
Thus, even after the 2002 amendment, no Model Rule explicitly prohibits a lawyer from reading the opponent’s missent document, or, for that matter, from any of the forms of snooping that the Formal Opinion cites, such as peeking at the adversary’s notes. Yet the Opinion is probably correct in assuming that most lawyers disapprove of such tactics, and it may well be correct that such widely condemned tactics violate the spirit of the Model Rules as expressed in its preamble.
However, Professor Freedman—an outspoken proponent of zealous advocacy—is on strong ground when he reads this argument as an admission that no rule prohibits a lawyer from reading and using inadvertently disclosed documents. Does Rule 4.4(b) change this situation? Freedman also asks rhetorically whether a client should lose the case because his or her lawyer doesn’t wish to be unsporting. What’s your view?
2.As to whether the mistakenly sent or produced document should be read or exploited, recall that Comment 3 to Rule 4.4(b) leaves this question to the lawyer, not the client. The Restatement (Third) of the Law Governing Lawyers, on the other hand, holds that “[t]he receiving lawyer may be required to consult with that lawyer’s client about whether to take advantage of the lapse.” Restatement, § 60 cmt. m.8 Which authority gets this question right? How much say should the client have in the matter? Rule 1.4(a)(2) requires the lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Does this help settle the question?
3.Numerous state and municipal bar associations have published ethics opinions on the subject of inadvertent disclosures. Most opinions require a lawyer who has inadvertently received privileged material and is aware of its confidential nature before reading it to refrain from examining the material—the position taken in ABA Formal Opinion 92–368. New York, on the other hand, strictly conforms to Model Rule 4.4(b), holding that the 130lawyer’s only obligation is to promptly notify the sender of the document’s receipt.9
Of course, it is very likely that the receiving lawyer will not know that a document is privileged without first reading it, so perhaps the more significant questions are whether lawyers can use the information and whether they must return the documents. Most opinions advise that lawyers may take advantage of confidential information that they have inadvertently received in order to further client interests.10 A few state bars hold that lawyers must not use such information and should return all inadvertently disclosed materials to opposing counsel.11 Significantly, only the Massachusetts bar has declared that the receiving lawyer must use the information if doing so would help the client—and yet this result seems to follow from an unqualified ethic of Neutral Partisanship. Does this mean that the profession is not committed to such an ethic? Do you agree with Formal Opinion 92–368 that “there are many limitations on the extent to which a lawyer may go ‘all out’ for the client”?
4.Similar questions have arisen in recent years about metadata embedded in electronic documents. Usually invisible on the screen, metadata can often be retrieved through word-processing or spreadsheet software. Much metadata is innocuous, but sometimes it reveals important confidences through tracked changes, comments, edits, and deleted material. An opinion by the D.C. Bar explains:
A lawyer who is preparing a document may electronically circulate the document in draft form among other lawyers in the firm for their review and comment. The other lawyers may insert their suggested revisions and other comments, some of which might address the strengths and weaknesses of the client’s position. If the final version of the document is electronically transmitted to opposing counsel, it may be possible for opposing counsel to discover the comments. The sender of the document may not be aware of the metadata embedded within the document, or that it remains in the electronic document despite the sender’s good-faith belief that it was “deleted.”12
The results can be highly damaging. “Examples of unintended releases . . . include one firm that posted a Word document online and, with two knowledgeable ‘clicks,’ a savvy viewer was able to discover that the client initially intended to sue someone other than the named defendant. In other cases, lawyers failed to effectively redact sensitive information.”13 Should 131lawyers be subject to sanctions for mining metadata? Or is looking for metadata that opposing counsel could have scrubbed but didn’t part of effective representation?
With digital technologies in mind, Comment 2 to Rule 4.4 now specifically provides:
[2]. . . . For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.14
Taking a stronger stance, ten states have held that receiving lawyers should refrain from proactively mining metadata.15 Which position makes the most sense?
In addition, according to the most recent ABA overview, all states that have weighed in require lawyers to take “reasonable care” not to transmit metadata inadvertently. Does your answer to the propriety of mining metadata depend on the adequacy of technology to perfectly scrub a document?16
5.If lawyers are prohibited from mining metadata, what would stop a sophisticated client from demanding that the lawyer forward documents along so that she can examine them? Must the lawyer refuse to send such documents to the client? May the lawyer refuse? Whose documents are they, the lawyer’s or the client’s?
You are a litigator in a large law firm. During the discovery phase of a complicated commercial proceeding in federal court, involving tens of millions of dollars, you are reviewing a thumb drive of documents that the adversary turned over a month earlier. In one folder you find a file of documents marked “CONFIDENTIAL: CONTENTS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE. UNAUTHORIZED PARTIES ARE PROHIBITED FROM READING THIS DOCUMENT.” On the assumption that this may be standard “boilerplate,” you begin to read one of the documents and quickly realize that it concerns the pending litigation and undoubtedly is protected by the attorney-client privilege. 132However, under Federal Rule of Evidence 502(b), if a party inadvertently discloses privileged information to another individual, that constitutes a waiver of the privilege unless the party took reasonable steps to prevent the disclosure and promptly took reasonable steps to rectify the error. Apparently, the file of documents was sent to you by mistake, and the documents in the folder were not password protected. You suspect that they contain information that would be quite valuable to your side in the litigation.
a)May you read the documents? Should you read the documents?
b)If you do read the documents, may you use the information contained in the documents to benefit your client?
c)Must you notify opposing counsel that you have received the documents by mistake?
d)Must you return the documents?
e)Are the above decisions yours to make or the client’s? Must you at least notify your client of what has transpired?
At least three rules are relevant. First is Rule 1.3, which requires “reasonable diligence” in pursuing client interests. Does failure to read the documents, or the decision to return them unread to the adversary, constitute a lack of reasonable diligence? As for the question of whose decision this is, consider Rule 1.2(a): “[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.” Rule 1.4(a)(2) instructs the lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
References: Rules 1.2, 1.3, 1.4, 4.4, 8.4; Fed. R. Evid. 502(b).
B.Neutral Partisanship and Role Morality
A central problem in legal ethics—and professional ethics more generally—arises from the Neutral Partisanship vision. Advocates, it is sometimes said, must do things for the client that they would never do for themselves. They must sometimes represent causes that they personally find repugnant and employ methods that may harm the innocent. Thus, lawyers acting in their professional role seem to be governed by a distinctive set of moral rules. Parallel problems arise for other professions. Journalists publish the truth even if doing so injures innocent parties; military leaders order lawful attacks that cause collateral damage; and physicians treating patients with STDs keep the knowledge of infection secret, even from the patient’s unprotected sexual partners. In the case of lawyers, the Neutral Partisanship vision insists on narrowing the range of the advocate’s moral concern to focus solely on the client.
133Is this concept of role morality—namely, a special morality associated with social or professional roles that differs from ordinary morality—justifiable? One critic of role morality is the lawyer-philosopher Richard Wasserstrom. In a well-known essay, Wasserstrom considers the “accusation . . . that the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.”17 According to Wasserstrom:
Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to which the end will be put or the character of the client who seeks to utilize it. Provided that the end sought is not illegal, the lawyer is, in essence, an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established.18
Wasserstrom observes that being an “amoral technician” requires some sort of justification—one cannot simply opt out of moral obligations at will. He believes that this problem is especially acute for lawyers:
The lawyer—and especially the lawyer as advocate—directly says and affirms things. The lawyer makes the case for the client. He or she tries to explain, persuade and convince others that the client’s cause should prevail. The lawyer lives with and within a dilemma that is not shared by other professionals. If the lawyer actually believes everything that he or she asserts on behalf of the client, then it appears to be proper to regard the lawyer as in fact embracing and endorsing the points of view that he or she articulates. If the lawyer does not in fact believe what is urged by way of argument, if the lawyer is only playing a role, then it appears to be proper to tax the lawyer with hypocrisy and insincerity. To be sure, actors in a play take on roles and say things that the characters, not the actors, believe. But we know it is a play and that they are actors. The law courts are not, however, theaters, and the lawyers both talk about justice and they genuinely seek to persuade. The fact that the lawyer’s words, thoughts, and convictions are, apparently, for sale and at the service of the client helps us, I think, to understand the peculiar hostility which is more than occasionally uniquely directed by lay persons toward lawyers. The verbal, role-differentiated behavior of the lawyer qua 134advocate puts the lawyer’s integrity into question in a way that distinguishes the lawyer from the other professionals.19
If lawyers seldom take such worries seriously, Wasserstrom suggests, that may be because a role morality like Neutral Partisanship, which permits lawyers to set moral scruples to one side, creates a “simplified intellectual world . . . that . . . is often a very comfortable one to inhabit.”20
Elsewhere, Wasserstrom insists on “a comprehensiveness, a universalistic dimension of morality, that is at odds with the more particularistic focus . . . that occurs within and through the perspective of roles.”21 Morality is “universalistic,” on this view, because to be moral is to transcend one’s own particular desires and loyalties, to recognize that all people have equal and intrinsic moral worth, and therefore to treat all those one encounters with equal respect and concern.
However, other philosophers have objected that this universalistic approach misses an important dimension of moral life: the significance of our attachments to particular people and groups—our friends, our family, our community, and (arguably) our clients. In the words of one philosopher:
Loyalty is neither egoism nor impersonal morality. . . . There is the morality of rules . . . and thou-shalt-nots. There is enlightened, rational egoism that fancies it can see that being a nice guy pays. And, different from these, but sharing features with each, are loyalties. Loyalties are part of what make our societal worlds go around.22
Here we see the decisive contrast. When does morality prevent us from playing favorites (notably, on behalf of clients)? When does it require us to play favorites? Does everyone share the same moral obligations, or does each “station” in life have its own unique “duties,” each tribe its own loyalties, each role its own script?
The view that morality imposes universal responsibilities appears across a wide range of cultures. It finds expression in the Golden Rule (“Do to men what you would wish men to do to you,” Matt. vii. 12), its cousins in the Hebrew Bible (“Love the stranger as thyself,” Levit. xix. 34), and the teachings of Confucius (“Never do to others what you would 135not like them to do to you,” Analects xv. 23).23 Each of these mandates suggests that, from the moral point of view, our common humanity demands that we should transcend local loyalties dictated by roles.
This idea was central to the work of the eighteenth-century philosopher Immanuel Kant, who claimed that the defining feature of the moral law is its universality—that it applies with equal force to everyone. Kant proposed that the test of whether a rule of action, or “maxim,” is morally acceptable is found in this formula: “Act only according to that maxim by which you can at the same time will that it should become a universal law.”24 In other words, one tests whether an act is morally permissible by asking: “What if everyone were permitted to do that?” Kant argued that his formula is equivalent to another rule: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.”25 He stressed the dignity that all humans share and argued that morality requires us to honor that dignity in everyone with whom we have dealings.
There are really two distinct propositions here: First, that everyone is bound by the same moral rules or obligations, and second, that everyone should be treated alike (as an end rather than a means). Though they are distinct, both propositions arise from the same source: the belief that we all possess human dignity and thus that, from a moral point of view, we are all each other’s equals. It is the second idea, that everyone should be treated with equal respect, that is of primary importance to legal ethics, for Neutral Partisanship requires systematically favoring clients over others.
Wasserstrom appears to be arguing from a Kantian understanding of ethics. It is a powerful position. As we have seen, however, critics have argued this understanding should be modified to make room for special loyalties. Even if the moral point of view demands that we ask whether our maxims could be accepted as universal laws, perhaps some of those laws extend only over our own occupational community, not over all human beings.
Not all theorists accept that the best way to think about legal ethics is through the “role morality” construct. W. Bradley Wendel argues that the legal system is above all a political institution, not a system of individual morality. The legal system enables people who may differ sharply in their views of right and wrong to resolve disputes peacefully. If lawyers follow their own moral outlooks rather than complying with the legal rules defining their institutional role, they subvert that important function of law in our pluralistic society. For this reason, 136Wendel argues that, except in the most extreme cases, lawyers should not take the morality of client ends and lawyer means into account except to the extent that the law itself rules out some ends or means. Thus, Wendel accepts the principle of neutrality. However, he also argues that the guiding value for lawyers should be fidelity to law, and in his view, that implies that zeal must never drive lawyers to distort the law or its institutions in the pursuit of client interests. On those grounds, Wendel does not endorse the principle of partisanship.26
1.Neutral Partisanship, Role Morality, and the Question of Client Selection
The selection of clients—who a lawyer should represent—brings the above discussion into sharp relief. If one embraces a full-throated vision of Neutral Partisanship and role morality, then one might say it is perfectly acceptable for lawyers to represent causes or clients that they personally find repugnant. Recall too, the Rules seem to embrace this vision, providing in Rule 1.2(b): “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Yet, whether, or to what extent, a lawyer should represent a client whose views she finds repugnant is one of the most difficult questions a lawyer must face.
In February 1997, this issue came to a head when the prestigious New York law firm of Cravath, Swaine & Moore agreed to represent Credit Suisse, one of three big Swiss banks to come under international scrutiny for laundering stolen Nazi gold in the Second World War. Official U.S. documents from the 1940s detail how Credit Suisse dealt with Nazi gold, most of which was looted from countries overrun by German forces and some of which was taken from victims of the Holocaust. These documents, based on extensive electronic surveillance by U.S. and British intelligence, show that the bank accepted gold bars from Germany and made millions of Swiss francs available to Germany. A 1945 report by the U.S. Foreign Economic Administration names Credit Suisse Zurich as the most frequent violator of the Allied Code of Conduct concerning Swiss banks.27
Before deciding to represent the bank, the firm heard objections from several partners during an unusual “all hands” meeting at which the issue was extensively discussed. After the meeting, presiding partner Samuel C. Butler wrote a firm-wide memorandum explaining that the decision to represent the bank was “a matter of great moral consequence,” but arguing that Cravath could “make a terrible situation 137better” by helping the bank reach a “fair and just” solution that would bring “a satisfactory closure to a very dark chapter in history.”28
A dozen of the firm’s associates wrote a memorandum protesting the decision. Several threatened to resign. The memorandum provided:
It is our conviction that one cannot represent Credit Suisse in its role as bankers to those who committed genocide and do the justice we are all obliged to do the victims and survivors of the slaughter. The two are simply incompatible. It seems implausible that Cravath could both serve Credit Suisse and bring about the fair and honorable resolution for those who suffered at the hands of the Nazis and their collaborators. We suspect, even with the best intentions, Credit Suisse’s interest may be too closely connected with containing the financial consequences of scandal for justice to be served by our representation of them.29
The associates argued that the firm’s decision to represent Credit Suisse would lend to the bank the “imprimatur” of Cravath’s sterling reputation. “Whatever settlement is ‘cut,’ ” they wrote,
Credit Suisse earns through the Firm’s involvement a legitimacy worth more to it than the wealth it has hoarded. In other words, the fee they pay the Firm buys them that which one is most obligated not to give those implicated in Nazi crimes. . . . The continuing problem of the Holocaust is that all reactions are inadequate, and this is why one must be very aware of the messages now sent to the survivors and perpetrators and collaborators. How can we take on the role of counsel to Credit Suisse and send the right message about the catastrophe of the Holocaust and the actions that led to it, let alone the actions that profited from it.30
On the other hand, several “senior statesmen” of the New York bar and leaders in New York’s Jewish community supported Cravath’s representation. Arthur Liman argued that Cravath would provide “effective lawyers who will try to find a fair solution.”31 If responsible firms turn away such a controversial case, Liman argued, it might end up in the hands of lawyers who see “dollar bills,” and “that would be a disaster . . . I would not like to see this becoming a lawyer’s feast.”32 Ezra Levin, a Jewish community leader and named partner at New York’s Kramer, Levin, Naftalis & Frankel, similarly viewed this case as “an opportunity [for Cravath] to perform a service to its client which is also 138likely to coincide with the interest” of Jews seeking to recover their assets.33 Levin hoped that Cravath would persuade the banks “that cooperation, rather than stonewalling, will best help them maintain their valued franchise and recapture their goodwill.”34
Harvey L. Pitt, at the time a lawyer at Fried, Frank, Harris, Shriver & Jacobson, said he saw “a huge difference between [representing] Credit Suisse and [Libyan leader] Moammar Gadhafi,” and that Cravath should not be criticized. (He was alluding to an earlier incident in which a prominent Washington lawyer and former State Department Legal Adviser drew criticism for representing Gadhafi in connection with a notorious terrorist attack.) “The essential difference is that [Credit Suisse] is an upstanding financial institution whose general policy is to comply with all the rules and laws applicable. If it makes a mistake, it is entitled to a defense. But if someone is deliberately assassinating people and is an affront to the world of nations they don’t earn the same entitlement to legal representation.”
On the other hand, Paul Wolff, a partner at the Washington law firm Williams & Connolly, thought Pitt’s analysis made the question sound too easy. “I totally agree with the distinction Harvey made between Gadhafi and Credit Suisse, if in fact he properly depicts Credit Suisse,” Wolff said. “The tough one is if this is not a bank that simply went astray . . . but in fact acted beyond the law, that provided assistance to the Third Reich and is hiding behind a polished image over the years. . . . What does a firm do?”35
It is 1997. You are an associate, just assigned to represent Credit Suisse in a case involving Nazi gold.
a)What do you do? Do you feel comfortable accepting this representation?
b)Do you agree with the Cravath associates’ letter? Would you sign it?
c)How should those partners who support taking on the client respond to the associates?
d)Should you or your colleagues be shocked or repelled by the firm’s willingness to take the case and by the statement of the firm’s management committee reaffirming the right of all clients to representation by the lawyer of their choice?
Reference: Rule 1.2(b).
1391.Legal ethicists Ben Heineman and David Wilkins suggest that a large firm’s decisions in accepting clients should be based on three general principles. The first is partner pluralism: Firms should recognize the moral agency of partners and the need for diversity of views, and so should have a presumption in favor of accepting matters partners bring to the firm, subject to the usual conflicts checks. A second principle involves screening by firm management based on core firm values, such as nondiscrimination and freedom of expression. A final principle is reputational screening based on business considerations.36
Do you agree with this framework? If so, do you believe Cravath made the correct decision?
2.A more recent controversy about choice of client involves Harvard Law Professor Ronald Sullivan’s decision to join the defense team of movie producer Harvey Weinstein, charged with rape and sexual abuse in the scandal that fueled the #MeToo movement. Sullivan has been described as “among the highest-profile criminal-defense lawyers in the country” because of his career representing mostly underprivileged people.37 He directs Harvard’s Criminal Justice Institute, a clinic; before coming to Harvard, Sullivan headed the Public Defender Service in Washington, D.C.
Until recently, Sullivan also served as dean of an undergraduate residential house, Winthrop House. Many students both in and out of Winthrop House expressed outrage and hurt over Sullivan’s representation of Weinstein. Harvard caused considerable controversy by removing him as dean, although it claimed the reasons had to do with failure to be effective in his administrative role, not his choice of clients.38 While Harvard’s decision and the student protests themselves raise significant issues, our concern here is simply with Sullivan’s decision to join the Weinstein defense team.
In a lengthy email to Winthrop House students, Sullivan vigorously defended the representation of unpopular clients. “It is particularly important for this category of unpopular defendant to receive the same process as everyone else—perhaps even more important. To the degree we deny unpopular defendants basic due process rights we cease to be the country we imagine ourselves to be.”39 In an interview, Sullivan said he took the case because “I decided that this case was sufficiently important to the rule of law,” although he would not go into the factors that led him to that conclusion (presumably, doing so would reveal confidential information).40 He emphasized that even wealthy and powerful defendants enter the 140criminal courtroom with a public presumption of guilt hanging over them. Sullivan added:
[L]awyers are not extensions or alter egos of their clients. Also, lawyers do not represent the ideology of their clients. Rather, lawyers are engaged in a long-standing tradition of service to people accused by the state. Just as surgeons don’t decline to work on people because they’re bad, lawyers too have these same obligations once they undertake a representation.41
In May 2019, however, Sullivan quit Weinstein’s defense team.
Criminal defense lawyer and law professor Lara Bazelon lambasted the student protestors who were outraged that Sullivan would represent Weinstein:
One of [the student] graffiti messages asked Sullivan, “Whose side are you on?” The answer should be obvious: the side of justice. Justice requires due process. In addition to being a law professor, Sullivan is a criminal defense lawyer, which means his job is to represent the accused—no matter how despised, no matter how heinous the accusation. That right—the Sixth Amendment right to a competent lawyer who can provide effective assistance of counsel—lies at the heart of our Constitution’s guarantee of due process.42
Yet there are arguments on the other side. Unlike indigent criminal defendants, Weinstein—a multi-millionaire—had the means to hire top-flight counsel. Nor did the criminal defense bar shun him; this is not a case where Sullivan was “the last lawyer in town.” Sullivan himself agrees that Weinstein would have no trouble finding highly qualified counsel.43 Does that undercut concerns about due process and Weinstein’s Sixth Amendment right to counsel?
Bazelon argues that “Sullivan is a criminal defense lawyer, which means his job is to represent the accused—no matter how despised, no matter how heinous the accusation.”44 That is true of a public defender, whose professional obligation is to take on whatever cases present themselves. Nevertheless, attorneys in private practice have a choice about whether to accept any given client. William Kunstler, a famous civil rights lawyer, once explained why he would not represent the Ku Klux Klan: “Everyone has a right to a lawyer, that’s true. But they don’t have a right to me.”45
3.Is the argument for zealous defense of an unpopular client stronger in the criminal than civil context? Consider the conduct of Lisa Bloom, a Los Angeles lawyer who has represented complainants in sexual harassment 141cases. She had business dealings with Weinstein and offered to help him defend his reputation as complaints began to surface. In a memo obtained by New York Times reporters, she offered to run counter ops on one of his accusers, Rose McGowan, to “call her out as a pathological liar,” and to place an article about her “becoming increasingly unglued so that when someone Googles her this is what pops up and she is discredited.”46 Is this a justifiable application of Neutral Partisanship principles?
4.Legal ethicists Monroe Freedman and Abbe Smith see the choice to represent a client as a moral decision of the lawyer, for which the lawyer is morally accountable. It may seem at first that their argument would prevent lawyers from ever representing morally repugnant clients. However, Freedman and Smith make it clear that lawyers can justify representing such clients if the representation serves constitutional, procedural, or other public values. For example, in Freedman and Smith’s view, lawyers are justified in representing guilty criminal defendants because doing so furthers Fifth and Sixth Amendment values and helps safeguard civil liberties against potential government abuse. Civil cases can likewise serve important public values, even when one’s clients are morally odious.47
Deborah Rhode argues for a framework that would “make the merits matter.” She would require the lawyer:
to assess [matters] from a moral as well as legal vantage. . . . Of course, in a profession as large and diverse as the American bar, different lawyers will reach different judgments about what is in fact equitable. Although such judgments should be defensible under accepted ethical principles, their application will necessarily reflect individuals’ own experiences and commitments. … [T]he framework proposed here does not demand that lawyers reach the same results in hard cases. It demands rather that lawyers recognize that such cases are hard, and that they call for contextual moral judgments.48
5.In other common law jurisdictions, solicitors (office lawyers) have the same freedom to reject clients as American lawyers, but barristers (trial lawyers) are subject to the “cab rank rule,” which requires them to accept any brief that is offered.49 Does this rule make the barrister’s role either an amoral or immoral one? Should American trial lawyers operate under a similar ethical requirement?
6.Bearing these points in mind, how should a lawyer decide which cases to take and which to avoid? What happens if moral problems with the client’s position do not become clear until after an attorney has begun 142representation? What positions might you find sufficiently “repugnant” to justify withdrawal under Rule 1.16(b)(4)?
C.For and Against Neutral Partisanship
1.Justifying the Lawyer’s “Amoral” Role
Any defense of role morality must include a defense of the role itself. Neutral Partisanship (or any other understanding of legal ethics, for that matter) cannot establish ethical obligations unless the role it creates is morally justifiable. Defenders of Neutral Partisanship generally rely on three arguments to justify the lawyer’s “amoral” role: (a) the rights of the client, (b) the moral interests of the lawyer, and (c) the needs of the legal system. We discuss each below, while also surveying common rejoinders.
American society traditionally has placed significant value on individual autonomy, on the liberty to order our own affairs, within wide limits defined by law. Many writers on legal ethics defend Neutral Partisanship in these terms. For example, Stephen Pepper writes:
Our first premise is that law is intended to be a public good which increases autonomy. The second premise is that increasing individual autonomy is morally good. The third step is that in a highly legalized society such as ours, autonomy is often dependent upon access to the law. . . . For most people most of the time, meaningful access to the law requires the assistance of a lawyer. Thus, the resulting conclusion. . . . If the conduct which the lawyer facilitates . . . is not unlawful—then this line of thought suggests that what the lawyer does is a social good.50
Richard Wasserstrom similarly notes that if lawyers decline on moral grounds to pursue their clients’ legal rights, the legal profession may exercise undue power as it determines who gets to exercise their legal rights and who does not. Pepper echoes this fear that moral “screening submits each . . . to rule by an oligarchy of lawyers.”51 Other commentators also have argued that clients’ rights should be lawyers’ paramount concern and have criticized lawyers who follow their own consciences and by doing so diminish client autonomy.
To critics of Neutral Partisanship, these are strong arguments, but they are by no means decisive. First, clients’ rights are not the only rights at stake in legal disputes, and when enhancing a client’s liberty or autonomy injures others, it must be shown that the gain excuses the 143wrong. Second, the “oligarchy” argument relies on an imperfect analogy. As Alan Goldman has remarked:
The major fallacy in this argument . . . is the implicit assumption that lawyers act as a corporate body to determine collectively how clients may act. In fact, they do not form such a body. They do not vote on how cases should be pursued, but rather act as individuals whose moral opinions may differ among themselves. . . . If an individual lawyer refuses to do for a client that which he feels the client has no right to do, the client can always seek another lawyer.52
Only in the exceptional case in which the lawyer is the “last in town” are the client’s rights necessarily at risk.53
The Moral Interests of the Lawyer
In a classic article, Charles Fried argued that a lawyer is a “special-purpose friend” of the client.
A lawyer is a friend in regard to the legal system. He is someone who enters into a personal relation with you—not an abstract relation as under the concept of justice. That means that like a friend he acts in your interests, not in his own; or rather he adopts your interests as his own. I would call that the classic definition of friendship. To be sure, the lawyer’s range of concern is sharply limited. But within that limited domain the intensity of identification with the client’s interests is the same.54
Fried then presses two points. First, each of us has a right to privilege the interests of our own friends, even if we could benefit more people by distributing our concern more broadly. We are not morally obligated to treat everyone in the world equally. An essential component of the good life is to be able to pay special attention to one’s family and friends. To deny us that right would be to infringe on our moral personality.
Fried’s second point is that favoring our friends is justifiable because friendship is itself a source of moral value. Reasoning by analogy, Fried concludes that since clients are special-purpose friends, an advocate cannot be criticized for favoring their interests over the interests of justice. Neutral Partisanship follows from this conception of “the lawyer as friend.”
Fried’s argument has attracted numerous comments and criticisms. Edward Dauer and Arthur Leff object that the friendship analogy is weak, because lawyers and friends share no common bond apart from their professional relationship. A friend, according to Fried, is someone 144who adopts our interests as his or her own. But, Dauer and Leff object, that definition of friendship begs the question; it means “a lawyer is like a friend . . . because, for Professor Fried, a friend is like a lawyer.”55 Along those same lines, Norman Spaulding has argued that the lawyer’s professional identity is rooted in ideals of service to the client, not personal identification with the client.56 William Simon goes further. Focusing on the fact that typically a lawyer becomes the client’s “friend” only for pay, Simon maintains that Fried has formulated the classical definition not of friendship but of prostitution.57
By contrast, Susan Wolf agrees with Fried’s friendship analogy; however, she argues that by using it to defend Neutral Partisanship, Fried has drawn the wrong conclusion:
If one adopts some interests as one’s own, it would seem one becomes to that extent personally accountable for them. Thus, if the interests are immoral, one can be personally blamed for having them. If, on the other hand, the lawyer is not to be blamed for the immorality of the client’s goals, this would have to be because these goals are not identified with the lawyer’s goals.58
Despite these objections, many lawyers will recognize a large grain of truth in Fried’s insistence on the personal and intimate character of legal services, which implies a large measure of trust on the part of the client and loyalty on the part of the lawyer. “The lawyer as friend” can at times be quite an apt metaphor.
Finally, some commentators seek to justify Neutral Partisanship by reference not only to the interests of clients, or of lawyers, but also to the nature of the American legal system. We have seen one such argument already: Professor Wendel’s point that in a pluralistic society—that is, a society where people do not necessarily agree about questions of value and morality—the legal system allows them to settle disputes without every issue escalating into an ultimate clash of values. The legal system is designed to accommodate many people’s different conceptions of how to live; for lawyers to interfere with clients’ exercise of their legal rights undermines the authority of law.59
145Other writers also emphasize the connection between the legal system and maintaining a pluralist society.60 Daniel Markovits emphasizes that a lawyer is usually necessary for people to participate in adjudication, and their sense of participation gives the system legitimacy. If people could not trust their lawyer to represent their views non-judgmentally, trust in the system would erode and it could no longer serve its purpose of resolving disputes peaceably.61 Markovits labels the advocate’s virtue “negative capability,” a phrase he borrows from the poet John Keats, who used it to describe the way that a poet must shine light on the subject of the poem, not on the poet’s own self. In the same way, by suppressing their own convictions, advocates are able to give full voice to their clients’.62
Perhaps the most common argument for Neutral Partisanship rests on the nature of the adversary system. At its core, the adversary system consists of three features: adjudication by an impartial tribunal, formal procedural rules, and party responsibility for the presentation of their own cases.63 This third feature inspires the principles of partisanship and neutrality: Lawyers’ role is to advance their clients’ cases (partisanship), without regard to their own view of its moral implications (neutrality).
Of course, law practice is by no means all litigation and, as such, not all law practice directly involves the adversary system. Nevertheless, lawyers find it natural to model client representation on the principles of the adversary system. For that reason, the following discussion focuses on the adversary system and the various justifications it provides for this Neutral Partisan role.
2.The “Search for Truth” and the Protection of Rights
Justifications for the adversary system generally rest on two premises: first, adversary procedures offer the best means of discovering truth; and second, zealous advocacy protects fundamental individual rights from public and private infringement. Problems with the adversary system reflect the flip side of these two justifications. Obligations of zeal and confidentiality encourage attorneys to avoid disclosing truth and may infringe upon adversaries’ legal rights. The tension between the general justifications and the particular consequences that the system occasionally entails has inspired a longstanding debate.
146The following excerpt provides perhaps the best-known defense of the adversary system. Co-authored in the 1950s by Lon Fuller, one of the nation’s most prominent philosophers of law, it represents a semi-official statement by a joint committee of the ABA and the Association of American Law Schools. This Report offers a reasoned argument for the superiority of the adversary system to other procedural systems such as those in Continental Europe, where the judge exercises primary control over the fact-finding process.
Lon L. Fuller and John D. Randall, “Professional Responsibility: Report of the Joint Conference of the ABA and AALS”
44 American Bar Association Journal 1159, 1160–61 (1958).
The lawyer appearing as an advocate before a tribunal presents, as persuasively as he can, the facts and the law of the case as seen from the standpoint of his client’s interest. It is essential that both the lawyer and the public understand clearly the nature of the role thus discharged. Such an understanding is required not only to appreciate the need for an adversary presentation of issues, but also in order to perceive truly the limits partisan advocacy must impose on itself if it is to remain wholesome and useful.
In a very real sense, it may be said that the integrity of the adjudicative process itself depends upon the participation of the advocate. This becomes apparent when we contemplate the nature of the task assumed by any arbiter who attempts to decide a dispute without the aid of partisan advocacy.
Such an arbiter must undertake, not only the role of judge, but that of representative for both of the litigants. Each of these roles must be played to the full without being muted by qualifications derived from the others. When he is developing for each side the most effective statement of its case, the arbiter must put aside his neutrality and permit himself to be moved by a sympathetic identification sufficiently intense to draw from his mind all that it is capable of giving—in analysis, patience and creative power. When he resumes his neutral position, he must be able to view with distrust the fruits of this identification and be ready to reject the products of his own best mental efforts. The difficulties of this undertaking are obvious. If it is true that a man in his time must play many parts, it is scarcely given to him to play them all at once.
It is small wonder, then, that failure generally attends the attempt to dispense with the distinct roles traditionally implied in adjudication. What generally occurs in practice is that at some early point a familiar pattern will seem to emerge from the evidence; an accustomed label is waiting for the case and, without awaiting further proofs, this label is promptly assigned to it. It is a mistake to suppose that this premature cataloguing must necessarily result from impatience, prejudice or mental 147sloth. Often it proceeds from a very understandable desire to bring the hearing into some order and coherence, for without some tentative theory of the case there is no standard of relevance by which testimony may be measured. But what starts as a preliminary diagnosis designed to direct the inquiry tends quickly and imperceptibly to become a fixed conclusion, as all that confirms the diagnosis makes a strong imprint on the mind, while all that runs counter to it is received with diverted attention.
An adversary presentation seems the only effective means for combating this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known. The arguments of counsel hold the case, as it were, in suspension between two opposing interpretations of it. While the proper classification of the case is thus kept unresolved, there is time to explore all of its peculiarities and nuances. . . .
It is only through the advocate’s participation that the hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues. Each advocate comes to the hearing prepared to present his proofs and arguments, knowing at the same time that his arguments may fail to persuade and that his proofs may be rejected as inadequate. It is a part of his role to absorb these possible disappointments. The deciding tribunal, on the other hand, comes to the hearing uncommitted. It has not represented to the public that any fact can be proved, that any argument is sound, or that any particular way of stating a litigant’s case is the most effective expression of its merits.
The matter assumes a very different aspect when the deciding tribunal is compelled to take into its own hands the preparations that must precede the public hearing. In such a case the tribunal cannot truly be said to come to the hearing uncommitted, for it has itself appointed the channels along which the public inquiry is to run. . . . The result may be that the hearing loses its character as an open trial of the facts and issues and becomes instead a ritual designed to provide public confirmation for what the tribunal considers it has already established in private. When this occurs, adjudication acquires the taint affecting all institutions that become subject to manipulation, presenting one aspect to the public, another to knowing participants.
These, then, are the reasons for believing that partisan advocacy plays a vital and essential role in one of the most fundamental procedures of a democratic society. But if we were to put all of these detailed considerations to one side, we should still be confronted by the fact that, in whatever form adjudication may appear, the experienced judge or arbitrator desires and actively seeks to obtain an adversary presentation of the issues. Only when he has had the benefit of intelligent and vigorous advocacy on both sides can he feel fully confident of his decision.
Viewed in this light, the role of the lawyer as a partisan advocate appears not as a regrettable necessity, but as an indispensable part of a larger ordering of affairs. The institution of advocacy is not a concession 148to the frailties of human nature but an expression of human insight in the design of a social framework within which man’s capacity for impartial judgment can attain its fullest realization.
When advocacy is thus viewed, it becomes clear by what principle limits must be set to partisanship. The advocate plays his role well when zeal for his client’s cause promotes a wise and informed decision of the case. He plays his role badly, and trespasses against the obligations of professional responsibility, when his desire to win leads him to muddy the headwaters of decision, when, instead of lending a needed perspective to the controversy, he distorts and obscures its true nature.
3.Critiques of the Adversary System and, by Extension, Neutral Partisanship
Best Way to Establish the Truth?
The following excerpt is a contemporary summary of objections to the argument that the adversary system is the best way to establish truth. The excerpt labels this the “argument from truth.”
David Luban, “Twenty Theses on Adversarial Ethics,” in Beyond the Adversarial System
143–45 (Helen Stacy & Michael Lavarch Eds., 1999).
The argument from truth is implausible, misleading, unrealistically abstract, empirically unconfirmed, and contrary to common sense.
Implausible: If the argument were right, then legal cultures with non-adversarial, or less adversarial, systems (for example, those of Germany and France) would be systematically less efficient at finding facts and arriving at accurate interpretations of the law. There is no evidence, even anecdotal, that this is true. . . .
Misleading: The argument from truth often invokes an analogy between adversarial adjudication and an idealized image of scientific inquiry, in which every thesis is subjected to raking criticism aiming to probe for weaknesses, unearth contrary evidence, and ensure that no proposition enters the corpus of scientific doctrine based on wishful thinking.
However, the adversary system bears scant resemblance to this idealized, critical-rationalist, picture of scientific inquiry. Science doesn’t, or at least shouldn’t, try to exclude probative evidence, discredit opposing testimony known to be truthful, fight efforts at discovery, use procedural devices to delay trial in hopes that opponents will run out of money or witnesses die or disappear, exploit the incompetence of opposing counsel, shield material facts from a tribunal based on privilege, or indulge in sophistry and rhetorical manipulation—all, arguably, tactics required by the principle of partisanship.
149Unrealistically abstract: Conspicuously absent from the critical-rationalist fantasy-portrait of the adversary system is any mention whatever of money (specifically, of the costs of litigation and the inequality of resources among parties). Nor does it take account of inequalities of skill among advocates; the compressed timeframe of a trial; the prejudices and frailties of all-too-human judges; [and] tactical manipulation by lawyers.
Empirically unconfirmed: Even the most sophisticated experimental efforts to model adversarial and non-adversarial procedures have failed to find a comparative advantage in either.
Contrary to common sense: Suppose that you faced a crucial life-decision, for example a choice between two attractive but very different job possibilities. If the adversary system really is the best method of finding the truth, you would ask friends, or hire lawyers, to investigate the possibilities and then use every trick in the litigator’s bag to try to persuade you of one or the other—tricks that might include efforts to hide or exclude material facts. It is obvious that no sane person would make a life-decision in such a perverse way. This shows how contrary to common sense the argument from truth is.
1.Fuller and Randall believe that the adversary system works properly only if lawyers do not “muddy the headwaters of decision.” What does that mean? Does it muddy the waters to use skillful cross-examination to discredit the testimony of a truthful witness? To exclude probative evidence from trial? To resist discovery requests? These are all accepted tactics of adversarial advocacy. Are Fuller and Randall defending Neutral Partisanship or attacking it?
2.Is the adversary system as good as Fuller and Randall suggest or as irrational as Luban implies? How could their opposing views be tested?
3.What alternative might there be to the adversary system? Civil law countries—those of continental Europe and legal systems derived from European models—employ the world’s major alternative, the so-called “inquisitorial” system. (The name has nothing to do with the Spanish Inquisition.) The principal difference between contemporary inquisitorial systems and adversary systems lies in the role of lawyers. Many of the functions assumed by advocates in adversary settings—such as the primary responsibility for questioning witnesses, selecting experts, and shaping the case—are performed by judges or magistrates under inquisitorial procedures. Although in both systems attorneys present arguments to the court, the model of an inquisitorial proceeding is that of an official inquiry into an event, rather than a contest between opposing camps.
Which system is likely to produce more accurate results? John Langbein has argued that German civil procedure reduces lawyer games and discovery 150costs, and eliminates surprise evidence at trial.64 But, by reducing the role of lawyers, it may lead to less thorough discovery. The late John Merryman, another eminent comparativist, discusses the debate between adversarial and inquisitorial criminal trials:
The debate is clouded by ignorance of the law and practice in civil law nations and by preconceptions that are difficult to dispel. In the end, a statement made by an eminent comparative scholar after long and careful study is instructive: he said that if he were innocent, he would prefer to be tried by a civil law court, but that if he were guilty, he would prefer to be tried by a common law court. This is, in effect, a judgment that criminal proceedings in the civil law world are more likely to distinguish accurately between the guilty and the innocent.65
4.Consider two important differences between American and German procedure:
What are the relative advantages of these contrasting practices? Which approach is more apt to surface the “truth?”
Best Way to Protect and Promote Individual Rights?
As noted, some argue that the purpose of the adversary system is not simply to establish the truth, but also to protect individual rights even at the expense of truth. As the late Monroe Freedman points out:
151[A] trial is far more than a search for truth, and the constitutional rights that are provided by our system of justice may well outweigh the truth-seeking value—a fact which is manifest when we consider that those rights and others guaranteed by the Constitution may well impede the search for truth rather than further it. What more effective way is there, for example, to expose a defendant’s guilt than to require self-incrimination, at least to the extent of compelling the defendant to take the stand and respond to interrogation before a jury? [However,] even the guilty accused has an ‘absolute constitutional right’ to remain silent.67
Good criminal defense lawyers often counsel a client to keep silent during interrogation and trial. They also attempt to suppress inculpatory evidence, even though doing so will obstruct the search for truth. Criminal procedure allows the defense attorney to take these and similar actions in order to safeguard legal rights. Similarly, in civil trials, counsel frequently invoke the attorney-client privilege or challenge discovery requests, even though such actions interfere with the search for truth.
What can justify ranking the preservation of the legal rights, even of guilty clients, ahead of accurate fact-finding? The most plausible answer seems to be that rights are values of a different, more fundamental, order than the pursuit of factual accuracy. In the words of Ronald Dworkin: “Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification . . . for imposing some loss or injury upon them.”68 Individual rights trump collective goals, even a goal as important as legal fact-finding.
Under this reasoning, the adversary system exists in order to provide litigants with the best opportunity to promote their legal rights, and the advocate’s job is to serve as a champion of those rights. Yet that justification, too, is susceptible to criticism, as the following selection makes plain.
Deborah L. Rhode, In the Interests of Justice
53–58 (2001).
[In addition to truth-related justifications, another] defense of neutral partisanship involves the protection of rights and the relationships necessary to safeguard those rights. Here again, the priority we place on personal liberties is rooted in more general cultural commitments. . . .
If . . . advocates were held morally accountable for their clients’ conduct, less legal representation would be available for those most 152vulnerable to popular prejudice and governmental repression. Our history provides ample illustrations of the social and economic penalties directed at attorneys with unpopular clients. It was difficult enough to find lawyers for accused communists in the McCarthy era, and for political activists in the early southern civil rights campaign. Those difficulties would have been far greater without the principle that legal representation is not an endorsement of client conduct.
These justifications of neutral partisanship assume special force in criminal cases. Individuals whose lives, liberty, and reputation are at risk deserve an advocate without competing loyalties to the state. Guilt or innocence should be determined in open court with due process of law, not in the privacy of an attorney’s office. The consequences of an alternative model are readily apparent in many totalitarian countries. Where defense lawyers’ role is to “serve justice,” rather than their clients, what passes for “justice” does not commend itself for export. Often the roles of counsel for the defendant and the state are functionally identical and the price is paid in innocent lives. This country has had similar experiences when the crime has been especially heinous or the accused has been a member of a particularly unpopular group. . . . Without the prospect of defense counsel willing to challenge law enforcement conduct, government officials have inadequate incentives to respect constitutional rights or to investigate facts thoroughly. Providing uncompromised advocacy for defendants who are guilty is the best way of protecting those who are not.
Although these rationales for zealous advocacy are not without force, they fall short of justifying current partisanship principles. A threshold weakness is the bar’s overreliance on criminal defense as an all-purpose paradigm for the lawyer’s role. A relatively small amount of legal work involves either criminal proceedings or civil matters that raise similar concerns of individual freedom and governmental power. An advocacy role designed to insure the presumption of innocence and deter prosecutorial abuse is not necessarily transferable to other legal landscapes. Bar rhetoric that casts the lawyer as a “champion against a hostile world” seems out of touch with most civil practice. The vast majority of legal representation assists corporate and wealthy individual clients in a system that is scarcely hostile to their interests. When a Wall Street firm representing a Fortune 500 corporation squares off against understaffed regulators or a victim of unsafe products, the balance of power is not what bar metaphors imply. . . .
[T]he bar’s traditional rights-based justifications offer inadequate support for prevailing adversarial practices. Such justifications implicitly assume that clients are entitled to assistance in whatever the law permits. This assumption confuses legal and moral rights. Some conduct that is socially indefensible may remain lawful because adequate prohibitions appear unenforceable, or because decisionmaking bodies are too uninformed or compromised by special interests to impose effective 153regulation. An ethic of undivided client loyalty in these contexts has encouraged lawyers’ assistance in some of the most socially costly enterprises in recent memory: the distribution of asbestos and Dalkon Shields; the suppression of health information about cigarettes; and the financially irresponsible ventures of savings and loan associations.
Defenders of neutral partisanship typically respond that protection of client rights is ethically justifiable despite such consequences because individual liberty and autonomy are of paramount value in a free society. Moral philosophers generally make no such mistake. As David Luban notes, this standard justification for zealous advocacy blurs an important distinction between the “desirability of people acting autonomously and the desirability of their autonomous acts.” It is, for example, morally desirable for clients to make their own decisions about whether to attempt to defeat a needy opponent’s valid claim through a legal technicality; it is not morally desirable for them actually to make the effort. Autonomy does not have intrinsic value; its importance derives from the values it fosters, such as personal creativity, initiative, and responsibility. If a particular client objective does not, in fact, promote those values, or does so only at much greater cost to third parties, then neither that objective, nor an advocate’s assistance, is ethically justifiable.
Lawyers manage to avoid this conclusion only by selectively suspending the moral principle they claim to respect. Under the bar’s ethical codes and prevailing practices, the legal rights and personal autonomy of clients assume paramount concern; the rights and autonomy of third parties barely figure. As a practical matter, this difference in treatment makes perfect sense. Clients are, after all, the ones footing the bill for advocates’ services. But from a moral standpoint, such selective concern is impossible to justify. Particularly when the client is an organization, values of autonomy often cut against the bar’s traditional priorities. A corporation’s “right” to maximize profits through unsafe but imperfectly regulated methods can hardly take ethical precedence over a consumer’s or employee’s right to be free from reasonably avoidable risks. And contrary to bar leaders’ claims, an attorney’s refusal to assist legal but morally dubious conduct does not necessarily compromise individual autonomy or impose a professional oligarchy. Unless the lawyer is the last in town, his or her refusal to provide representation will not foreclose client choices. It may simply prompt reevaluation of their ethical consequences or impose the financial and psychological costs of finding alternative counsel. It is, of course, true that lawyers have no special expertise in evaluating those consequences. But attorneys at least will have a more disinterested perspective than clients on the moral dimensions of client activities. Moreover, the bar’s willingness to suspend moral judgment is highly selective. When clients’ conduct is at issue, advocates readily become agnostics. Lawyers insist that they are not “presumptuous enough to pass judgment” on what constitutes the “public 154interest,” or to cast themselves as “unique guardians of the public good.” Yet when a regulation involving attorneys’ own conduct is at issue, they generally have no similar difficulty in determining where the public interest lies. Indeed, the organized bar has sought exclusive authority to pass judgment on many ethical questions, such as whether protecting client confidences should trump other societal values, or whether lawyers should have obligations to prevent foreseeable injuries to third parties.
The real question is not “by what right” do lawyers “impose” their moral views, but by what right should they evade a fundamental moral responsibility of all individuals: to accept accountability for the consequences of their actions. Of course, reasonable people often disagree about whether particular conduct is ethically justifiable. They also disagree about whether it is possible to reach any “right” answer in moral disputes. But even if a lawyer believes that objectively valid moral decisions are impossible, it does not follow that all views are equally valid. Some positions are more coherent, free of bias or self-interest, and supported by reliable evidence. Lawyers can, and should, act on the basis of their own principled convictions, even when they recognize that others could in good faith hold different views.
Consider two examples of defense by intimidation. Are these tactics proper?
a)A law firm defended pharmaceuticals manufacturer A.H. Robins Co. in thousands of lawsuits over the Dalkon Shield, an intrauterine contraceptive device that Robins marketed during the 1970s to over three million women. Because of a design flaw, the Dalkon Shield caused an estimated 66,000 miscarriages and sterilized thousands of women by infecting them with pelvic inflammatory disease (PID).
One tactic of Robins’s counsel soon acquired the nickname “the dirty questions list.” During deposition, defense lawyers asked plaintiffs very specific, graphic questions about intimate details of their personal hygiene and sexual practices—questions that one plaintiff described as “like an obscene phone call.” Firm lawyers argued that the answers were relevant to the lawsuits because they might reveal alternative sources of PID infection. Defense counsel also asked plaintiffs for the names of all their past and present sexual partners (“besides your husband”), raising the possibility that the partners’ names might be revealed and that they might be called as witnesses for purposes of impeaching plaintiffs’ testimony about her sexual practices. Potential litigants filed affidavits indicating that they had dropped their own lawsuits because of the questions that other women had been asked, and their fear that they would have to answer the same questions in open court.
b)A seasoned trial litigator repeatedly makes unsustained evidentiary objections in order to disrupt the flow of her adversary’s 155presentation and distract the jury from damaging evidence.69 She also refuses to consent to a rescheduling request by an opposing lawyer whose wife is undergoing major surgery on the grounds that it would seriously inconvenience her expert witnesses. Her firm has hired investigators to look into the private lives of adversaries.
References: Rules 3.1, 3.4, 3.5, 8.4.
1.Who should decide whether to use tactics that may well affect the outcome of litigation? Consult Chapter 5 and Rule 1.2(a), on the allocation of decisionmaking responsibilities between lawyer and client. Would a lawyer who declined to use the tactics set forth in Problem 3 at a client’s request be in violation of the Rules?
2.Do lawyers bear moral responsibility for using such tactics? For proposing them to clients who never thought of them? Or do the principles of Neutral Partisanship let lawyers “off the moral hook”?
3.Suppose a lawyer agrees to a request of opposing counsel for a continuance in order to deal with a family emergency. The lawyer later realizes that his opponent will suffer a default judgment unless she gets a court approval for the continuance. Can the lawyer alert her to that fact, even though it will mean forgoing a default judgment for the client? Does the lawyer need to get the client’s approval under Rule 1.4(a)(2), which requires reasonable consultation with the client “about the means by which the client’s objectives are to be accomplished?”70
4.In a variation of the Dalkon shield tactics addressed above, a plaintiff who alleged she had contracted AIDS by a contaminated needle left in her hospital bedding was cross examined by the hospital’s lawyer about her love life and abortions. The doctor claimed that the questions were relevant to whether she might have contracted the disease through sexual intercourse or transfusions. Before the case went to the jury, the defendant settled for $1.35 million.71 The plaintiff’s lawyer described opposing counsel as “disgusting and venomous” and told a New York Times reporter that the fact that the plaintiff was on trial during the final days of her life was “a terrible indictment of the adversary system.”72 Was it?
5.One notorious case in which lawyers used private investigators to help discredit adversaries involves car manufacturers’ attempt to smear Ralph Nader after his expose of safety defects. A more recent example involves lawyer David Boies’s negotiation of a contract for Harvey Weinstein with the Black Cube detective firm to dig up dirt on one of his sexual abuse 156complainants and on journalists who were looking into the allegations.73 Do any of these cases cross a line? Why or why not?
In a subsequent New York Times profile, Boies defended his role in the Weinstein case, along with his representation of Theranos, a company accused of massive fraud, where his efforts reportedly included intimidating whistleblowers. Boies stated:
A lawyer can choose what clients to represent. A lawyer does not have the choice of how to represent a client. A lawyer is duty-and-honor-bound to represent a client effectively and aggressively, within the bounds of the system itself. A lawyer does not have the right to abandon that client under fire, except in extraordinary circumstances.74
Do you agree? If, as some argue, Boies had reason to suspect that Weinstein was engaged in serial sexual abuse, would that constitute reasons to abandon the client or at least refrain from seeking information that Weinstein could use to intimidate complainants?75 (We include an extended case study of the multi-issue Boies representation in the separate volume of case studies accompanying this book.)
D.Alternatives to Neutral Partisanship
A natural question at this juncture is what alternatives are available in the United States to the Neutral Partisanship conception. Some experts believe that alternative conceptions of professional ethics were prevalent in the eighteenth and nineteenth centuries.76 Clearly the historical record reveals considerable disagreement on the proper relationship between the lawyer’s and the client’s conscience.
Elihu Root, a founder of the firm that later became Cravath, Swaine & Moore, is remembered for the adage “[t]he client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how”—a view that comes quite close to Neutral Partisanship.77 Yet Root’s contemporary, Louis Brandeis—also a major corporate lawyer before ascending to the Supreme Court—once wrote a memorandum to himself (entitled “The Practice of Law”) which directed, “[a]dvise client what he should have—not what he 157wants”78—an uncanny counterpoint to Root’s adage. Legal historian Robert Gordon has argued that in practice as well as theory, the nineteenth century corporate bar found itself divided: on the one hand, offering its clients zealous representation, while, on the other hand, engaging in progressive reforms sometimes antithetical to client interests.79
Several contemporary writers have proposed alternatives to Neutral Partisanship. William Simon argues that lawyers should pursue legal justice, which he carefully distinguishes from the lawyer’s own moral values. Legal justice means justice by the lights of the values inherent in the law. What legal justice requires depends upon the context.80 When a statute or rule is itself consistent with the basic values of a legal system, “pursuing justice” might require asserting the statute in order to further its underlying policy. But if the statute itself violates more fundamental legal values (such as fairness), pursuing justice might lead a lawyer to find loopholes around the statute, treating it narrowly and formalistically even if that frustrates its purpose. In situations where an advocate can count on opposing counsel to uphold his or her client’s rights, legal justice may be served if both sides act as Neutral Partisans. But in a context such as Rita’s Case, where opposing counsel is effectively out of the loop, an approach that considers the child’s interests as well as the client’s may be necessary to achieve the kind of legal justice that the adversary system contemplates.
Another prominent theorist, W. Bradley Wendel, writes that “the lawyer-client relationship should be structured by the ideal of fidelity to law—not to clients.”81 According to this conception, lawyers cannot twist the law to suit their clients’ ends, for example by writing a legal advisory opinion that uses dubious arguments to reach an outcome the client desires.
By contrast to Simon’s emphasis on legal justice and Wendel’s on fidelity to law, David Luban has argued that the adversary system is too weakly justified to support a role morality that diverges widely from non-professional morality. As a result, lawyers in their professional roles should hold themselves just as accountable for their actions as they would be in ordinary, non-legal circumstances. Thus, if intimidating injured women into dropping legitimate lawsuits by forcing them to answer humiliating “dirty questions” (see Problem 3, supra) is wrong for a non-lawyer to do, it is wrong for a lawyer to do as well.82 The primary 158exception is in criminal defense, where, as we discuss in Chapter 8, adversarial advocacy is strongly justified by the (constitutional) values of protecting people from the abuse of state power.
Deborah Rhode has similarly argued for:
an alternative framework for the advocate’s role that needs to be ethically justifiable in principle and consistently reinforced in practice. At its most basic level, such a framework would require lawyers to accept personal moral responsibility for the consequences of their professional actions. Attorneys should make decisions as advocates in the same way that morally reflective individuals make any ethical decision. Lawyers’ conduct should be justifiable under consistent, disinterested, and generalizable principles.
These moral principles can, of course, recognize the distinctive needs of lawyers’ occupational role. Ethically responsible decisionmaking always takes into account the context and capacity in which a person acts. The extent of attorneys’ responsibilities for client conduct will depend on their knowledge, involvement, and influence, as well as on the significance of values at stake.
However, unlike the bar’s prevailing approach, this alternative framework would require lawyers to assess their obligations in light of all the societal interests at issue in particular practice contexts. An advocate could not simply retreat into some fixed conception of role that denies personal accountability for public consequences or that unduly privileges clients’ and lawyers’ own interests. Client trust and confidentiality are entitled to weight, but they must be balanced against other equally important concerns. Lawyers also have responsibilities to prevent unnecessary harm to third parties, to promote a just and effective legal system, and to respect core values such as honesty, fairness, and good faith on which that system depends. In accommodating those responsibilities, lawyers should, of course, be guided by relevant legal authority and bar regulatory codes. Respect for law also is a fundamental value, particularly among those sworn to uphold it. Adherence to generally accepted rules also serves as a check against the decision maker’s own bias or self-interest. But . . . attorneys may at times confront exceptional cases in which the applicable rules are so inadequate that reference to broader moral principles is necessary.83
Under the Neutral Partisanship conception, lawyers are not morally accountable for their clients’ ends, provided these are lawful. Nor can lawyers be held morally responsible for their choice of clients or for lawful 159means in pursuing client’s ends. As seen above, most alternatives to Neutral Partisanship insist on some measure of moral accountability. This need not take the form of legal liability, which raises practical concerns about administrability, fairness, and the danger of abuse. Moral accountability refers to accountability before the court of conscience, not before courts of law. However, the following section examines instances where the limits to partisanship are indeed backed by legal sanctions.
What do you make of the above alternatives to Neutral Partisanship? Do any seem preferable to you? Why or why not?
In this final section, we consider cases, such as those involving terrorists or members of organized crime, in which lawyers have faced criminal charges for actions taken on behalf of clients. Usually, this occurs when the client is a notorious criminal figure—for example, an organized crime boss—and the prosecutor concludes that the lawyer has crossed the line between a “criminal lawyer” and a “lawyer-criminal.”84 These examples suggest the legal limits of Neutral Partisanship. Such cases raise, in the starkest terms, the questions of when zealous advocacy makes a lawyer accountable for pursuing the client’s ends, and whether such legal accountability is a good idea.
United States Court of Appeals, Seventh Circuit
151 F.3d 620 (1998).
n Bauer, Circuit Judge.
After a jury trial, Amiel Cueto was convicted of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of obstruction of justice, in violation of the omnibus clause of 18 U.S.C. § 1503. The district court sentenced Cueto to 87 months imprisonment and imposed monetary penalties. Cueto now appeals his convictions and sentence. . . . For the following reasons, we affirm.
BACKGROUND
[Thomas Venezia owned B & H, a vending machine and video-game business through which he operated an illegal gambling operation in East St. Louis, Illinois. The business placed videogames in taverns, where they were used for gambling. Cueto, a lawyer, represented Venezia and several tavern owners, all of whom were targeted in an investigation by the Illinois Liquor Control Commission (ILCC), the police, and the 160FBI. Robinson was an ILCC agent who worked undercover for the FBI and posed as a corrupt liquor agent. When the state police raided a tavern that was participating in Venezia’s gambling business, Robinson solicited a bribe from Venezia in return for promises to call off the investigation. Venezia asked Cueto for legal advice. Cueto told Venezia not to pay the bribe. Cueto then began a litigation campaign against Robinson and his investigation. Cueto had one of his partners file a complaint with the State’s Attorney depicting Robinson as a corrupt agent engaged in extortion. Next, Cueto obtained an injunction forbidding Robinson from interfering with Venezia’s businesses. When Robinson persisted in the investigation, Cueto filed additional complaints against him, including a motion to “show cause,” asking that Robinson be held in contempt for violating the injunction. When Robinson prevailed by proving that he was an undercover FBI agent, Cueto appealed, first to the Seventh Circuit and then to the United States Supreme Court. Both appeals were unsuccessful.
Subsequently, Robinson testified in a gambling prosecution against one of B & H’s customers, and Cueto cross-examined him. Cueto sent transcripts of this cross-examination to the State’s Attorney, charging that Robinson had committed perjury and should be investigated. Cueto lobbied a congressman (who was a partner with Cueto and Venezia in a gambling establishment) to exert influence to get Cueto appointed State’s Attorney; he also published a newspaper and wrote articles in it in which he attacked the prosecutors in the racketeering investigation, and announced that he would run for State’s Attorney and, if elected, would prosecute Robinson. When a grand jury was impaneled to investigate Venezia, Cueto worked on his defense, and filed numerous motions to hinder the investigation and to get the grand jury dissolved. Although Cueto succeeded in delaying the investigation, Venezia was eventually convicted on various gambling and racketeering charges.
Throughout this period, Cueto was involved in real estate deals and other business ventures with Venezia, including an asbestos removal business and a topless bar at which Venezia’s illegal gambling devices were used. The financial viability of these businesses depended on the revenues from Venezia’s gambling business, which secured loans and covered debts.
Cueto was indicted for “conspiracy to defraud the United States,” in violation of 18 U.S.C. § 371, “alleging that he misused his office as an attorney and unlawfully and intentionally conspired with Venezia . . . to impede, impair, obstruct, and defeat the lawful function of the FBI, the grand jury, and the federal district court in connection with the investigation, indictment, and prosecution of Venezia, B & H, and the illegal gambling operation and racketeering enterprise.” The indictment alleged that Cueto and Venezia’s business relationship created Cueto’s financial motive for his participation in the conspiracy, in which he endeavored to protect the illegal gambling enterprise and to maintain its 161continued operation in order to safeguard his personal financial interests. In addition to the conspiracy charges, the government charged obstruction of justice and alleged “that Cueto endeavored to use his office as an attorney to influence, obstruct, and impair the due administration of justice in various court proceedings.”]
ANALYSIS
I.Obstruction of Justice
Cueto asserts several arguments with respect to his convictions . . . for obstruction of justice, contending that the omnibus clause of § 1503 is unconstitutionally vague as applied to the conduct charged in the indictment. . . . Cueto argues that “much of what lawyers do—are attempts to influence the justice system,” and that the omnibus clause of § 1503 was not intended to apply to the type of conduct charged in the indictment. Questions regarding the constitutionality or scope of a statute are reviewed de novo.
. . . The omnibus clause of § 1503 is a catch-all provision that states:
Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes or endeavors to influence, obstruct or impede, the due administration of law, shall be imprisoned. . . .
18 U.S.C. § 1503. This clause was intended to ensure that criminals could not circumvent the statute’s purpose “by devising novel and creative schemes that would interfere with the administration of justice but would nonetheless fall outside the scope of § 1503’s specific prohibitions.” “The obstruction of justice statute was drafted with an eye to ‘the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined.’ ”
Cueto also contends that the vagueness problems are exacerbated by this court’s broad construction of the term “corruptly,” arguing that it fails to provide meaningful and adequate notice as to what conduct is proscribed by the statute. . . .
Corruptly means to act with the purpose of obstructing justice. . . .
We are not persuaded by Cueto’s constitutional challenges, and his focus is misplaced. The government’s theory of prosecution is predicated on the fact that Cueto held a personal financial interest in protecting the illegal gambling enterprise, which formed the requisite corrupt intent for his conduct to qualify as violations of the statute. Cueto focuses entirely on the legality of his conduct, and not the requisite criminal intent proscribed by § 1503. It is undisputed that an attorney may use any lawful means to defend his client, and there is no risk of criminal liability if those means employed by the attorney in his endeavors to represent his client remain within the scope of lawful conduct. However, it is the corrupt endeavor to protect the illegal gambling operation and to 162safeguard his own financial interest, which motivated Cueto’s otherwise legal conduct, that separates his conduct from that which is legal.
Even though courts may be hesitant, with good reason and caution, to include traditional litigation-related conduct within the scope of § 1503, the omnibus clause has been interpreted broadly in accordance with congressional intent to promote the due administration of justice and to prevent the miscarriage of justice, and an individual’s status as an attorney engaged in litigation-related conduct does not provide protection from prosecution for criminal conduct. . . . Cueto’s arguments have no merit. As a lawyer, he possessed a heightened awareness of the law and its scope, and he cannot claim lack of fair notice as to what conduct is proscribed by § 1503 to shield himself from criminal liability, particularly when he was already “bent on serious wrongdoing.” More so than an ordinary individual, an attorney, in particular a criminal defense attorney, has a sophisticated understanding of the type of conduct that constitutes criminal violations of the law. . . . It is true that, to a certain extent, a lawyer’s conduct influences judicial proceedings, or at least attempts to affect the outcome of the proceedings. However, that influence stems from a lawyer’s attempt to advocate his client’s interests within the scope of the law. It is the “corrupt endeavor” to influence the due administration of justice that is the heart of the offense, and Cueto’s personal financial interest is the heart of his corrupt motive. . . .
We have carefully examined the fears articulated by the National Association of Criminal Defense Lawyers, in addition to the arguments put forth by the defendant, that a decision upholding the application of the omnibus clause of § 1503 to litigation-related conduct may deter or somehow chill the criminal defense lawyers in zealous advocacy, and we find those concerns to be exaggerated, at least as considered in light of the facts in the present case. Although we appreciate that it is of significant importance to avoid chilling vigorous advocacy and to maintain the balance of effective representation, we also recognize that a lawyer’s misconduct and criminal acts are not absolutely immune from prosecution. We cannot ignore Cueto’s corrupt endeavors to manipulate the administration of justice and his clear criminal violations of the law. As the First Circuit recognized in Cintolo:
Nothing in the caselaw, fairly read, suggests that lawyers should be plucked gently from the maddening crowd and sheltered from the rigors of 18 U.S.C. § 1503 in the manner urged by appellant and by the amici. Nor is there sufficient public policy justification favoring such a result. To the contrary, the overriding public policy interest is that “the attorney-client relationship cannot . . . be used to shield or promote illegitimate acts. . . .” “Attorneys, just like all other persons, . . . are not above the law and are subject to its full application under appropriate circumstances.”
163Accordingly, we conclude that the omnibus clause of § 1503 may be used to prosecute a lawyer’s litigation-related criminality and that neither the omnibus clause of § 1503 nor this court’s construction of the term “corruptly” is unconstitutionally vague as applied to the conduct charged in the indictment for which Cueto was convicted. . . . [T]he record adequately supports the conclusion that Cueto’s conduct, though nominally litigation related conduct on behalf of his client, was undertaken with the corrupt intent to protect Venezia, Venezia’s associates, and his business from criminal prosecution and to safeguard his personal financial interest in the illegal gambling operation, whatever the costs and consequences to the due administration of justice.
The charges in Count 2 of the indictment included allegations of a corrupt endeavor to obstruct the due administration of justice in Venezia v. Robinson by filing pleadings in federal district court and a continued attempt to hinder the proceedings by filing an appeal in this court and a petition for certiorari in the United States Supreme Court. The evidence demonstrates that Cueto successfully exposed the FBI’s investigation, uncovered the evidence it had gathered, obtained the injunction against Robinson, and continued to file frivolous appeals after the district court dismissed the injunction and the complaint. Government agents, in fact, testified that the investigation was disrupted and that Cueto “blew the lid off the ongoing investigation.” The jury was amply justified in concluding that Cueto’s repeated filings were motivated by his attempt to protect his client from prosecution and to safeguard his financial interest. Cueto’s actions may qualify as traditional litigation-related conduct in form, but not in substance, and the evidence presented at trial demonstrates that Cueto clearly intended and corruptly endeavored to obstruct the due administration of justice in Venezia v. Robinson. . . .
For the reasons discussed above, keeping in mind the limited scope of our holding, we AFFIRM the defendant’s convictions and the sentence imposed by the district court.
1.What is the difference between zealous advocacy on behalf of a suspected racketeer and obstruction of justice? Is it only the lawyer’s “corrupt” motive? What made Cueto’s motive corrupt? Is it only his business dealings with his client? Many lawyers have business dealings with clients.85 Is it his financial dependence on his client? If so, how is Cueto different from corporate in-house counsel, many of whom are paid in shares of the company? Is it that the client is engaged in criminal activity? Isn’t that often true of criminal defenders’ clients? What if a corporation is convicted of criminal activity? Could their general counsel be criminally liable for legally opposing the investigation?
1642.How, if at all, can Cueto be reconciled with the proposition that lawyers are not accountable for pursuing their clients’ ends through use of the legal system? What were Cueto’s “clear violations of the law”?
One possible answer is that Cueto’s business dealings with Venezia made him a partner in Venezia’s racketeering, rather than simply a lawyer representing a racketeer. However, the government did not prosecute Cueto as a racketeer or as an accomplice in racketeering—perhaps because it did not have the evidence. The government prosecuted him only for his lawyering activities, which obstructed justice by disrupting the government’s investigation of Venezia. (The conspiracy charge is basically conspiracy to obstruct justice.) Was that prosecution appropriate?
3.The Restatement (Third) of the Law Governing Lawyers cautions in § 8: “The traditional and appropriate activities of a lawyer in representing a client in accordance with the requirements of the applicable lawyer code are relevant factors for the tribunal in assessing the propriety of the lawyer’s conduct under the criminal law.” How much help would this section provide to Cueto?
4.One of the most highly-publicized prosecutions of lawyers for their conduct as advocates concerned half-a-dozen attorneys representing members of the Cali cocaine cartel (now defunct, but viciously active in the 1990s). After raiding their offices, the government indicted three lawyers for money laundering, soliciting false statements from drug defendants, and conspiring with their clients to import cocaine. The latter charge was the most controversial. The government’s theory was that the lawyers were so deeply involved in advising their clients how to continue their activities with impunity that they had become co-conspirators. According to federal prosecutors, some of the lawyers conveyed death threats from Cali or paid hush money to captured suspects in Florida. Some allegedly sought to protect the reputed heads of the Cali cartel by obtaining false affidavits. The lawyers were also accused of arranging bail with the knowledge that their clients would leave the country.
Three of the lawyers were former federal prosecutors, and another, Michael Abbell, was a Harvard Law School graduate who had served nearly twenty years at the Department of Justice, rising to head the Office of International Affairs. An expert in extradition, he went into private practice and was hired to help Miguel Rodriguez-Orejuela, a reputed Cali cartel kingpin, fight extradition from Spain to the United States. He later helped Rodriguez in other matters.
The Miami defense bar believed that the indictments were an attempt to intimidate defense lawyers representing drug clients (the so-called “white powder defense bar”). “They’re charging [the lawyers] with the crimes of their clients,” commented Miami attorney Roy Black, who represented Abbell. “The worst part of this,” he added, “is the prosecutors who obtained the indictment were the same prosecutors who opposed these lawyers in a drug case.”86 Other defense counsel believed that the indictments broke new 165ground by criminalizing client-representation activities that had not previously been regarded as illegal.
After several trials, Abbell and attorney William Moran were convicted on a number of charges, but Senior U.S. Judge William M. Hoeveler threw out all their convictions except those for money-laundering conspiracy. “The lawyers did some things that were highly unprofessional and, indeed, unethical,” Judge Hoeveler explained. “I don’t think they should practice law again. That doesn’t make them part of a racketeering conspiracy.”87 For the money laundering charge, Abbell was sentenced to seven years, Moran to five years, and former federal prosecutor Donald Ferguson to two years.
5.Perhaps the most startling of the Cali convictions was that of another former federal prosecutor, Joel Rosenthal. When a Cali member was arrested in Texas in 1991, Rosenthal retained a lawyer there to represent him. He did so with $65,000 in cash from reputed Cali kingpin Miguel Rodriguez, which he first deposited in his own trust account. Rosenthal did not disclose the source of the fees to the Texas lawyer.
The government claimed that Rosenthal’s activity constituted money laundering and concealment. The money-laundering statute, 18 U.S.C. § 1957(a), penalizes anyone who “knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000.” Rosenthal pled guilty. Norman Muscowitz, a former federal prosecutor who represented Rosenthal, calls the outcome “tragic.” He explains: “Except for this crime, Joel has had a long and honorable career as an attorney.”88
Did Rosenthal cross the line from criminal lawyer to lawyer-criminal? Do such prosecutions deter lawyers from vigorously defending those accused of notorious criminal activity? Or does the government have a legitimate interest in discouraging attorneys from being “on retainer to the Mafia”?89
6.How far can a lawyer go in representing a terrorist or an accused terrorist without running afoul of the law? In pursuit of terrorism suspects, the government has frequently relied on two criminal statutes prohibiting “material support” for terrorism. Material support has a broad definition, which includes providing “expert advice or assistance”—meaning “advice or assistance derived from . . . specialized knowledge”—and “personnel (1 or more individuals who may be or include oneself).” 18 U.S.C. § 2339A(1), (3). The crucial question for lawyers is whether, by representing an alleged terrorist, a lawyer has provided expert advice or assistance, or personnel. If so, the lawyer runs the risk of prosecution and lengthy imprisonment.
The answer may depend on which of two material support statutes is involved. Title 18, § 2339A prohibits providing material support items “knowing or intending that they are to be used in preparation for, or in 166carrying out” terrorist crimes, while § 2339B prohibits knowingly providing material support to a foreign terrorist organization (FTO), knowing that they have been so designated by the U.S. Government. The statutes also criminalize attempts and conspiracies to provide material support to terrorists. Notice the difference in mens rea between the two statutes. Section 2339A requires that the accused not only provided material support but did so knowing or intending that the support would be used to facilitate terrorist crimes. Section 2339B requires no such knowledge or intention. All it requires is that the accused has knowingly provided material support to an organization that he or she knows has been designated as an FTO. Thus, for example, someone who donates money to a known FTO has violated § 2339B even if he or she believes that the money would not be used to commit crimes. What about someone who provides legal services to a designated FTO? Consider the following problem.
The Beneficent Society is a self-described international charitable organization that collects money for social services in the Middle East. The U.S. Government claims that the Society has occasionally funneled money to ISIS. The government officially designates both organizations as “foreign terrorist organizations” (FTOs). The Beneficent Society wishes to challenge its FTO designation; it insists that it is purely a charity engaged in helping the poor and unfortunate, with no connection to terrorism or other illegal activity. The Society complains that its designation as an FTO makes it impossible for anyone to make a contribution without risking prosecution. As it happens, a different, unrelated designated FTO has filed a legal challenge to the material support statute. The Society wishes to file an amicus brief in that case supporting the challenge, and it wishes to retain your law firm, which specializes in civil rights and civil liberties litigation. You are asked by a partner to research whether the firm can safely write the amicus brief.
Your research immediately turns up Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). In Holder, the Supreme Court rejected a constitutional challenge to the material support statute by a human rights organization whose mission was teaching peace-making to FTOs in Turkey and Sri Lanka. Most relevant for you, during the Holder litigation, the government specifically asserted that the material support statute would prohibit lawyers from writing an amicus brief on behalf of an FTO. However, although the Court specifically mentioned this assertion, it declined to comment on its validity because it was a hypothetical not raised by the facts of the case. In his dissenting opinion, Justice Breyer also remarked on the government’s contention that it would be illegal to file an amicus brief on behalf of an FTO, while warning that “there is no natural stopping place” for the statute’s scope.
The basis for the government’s assertion is that “material support” includes providing “expert advice or assistance” as well as “personnel.” 167According to the government, that would include lawyers. The statute defines “providing personnel” as “to work under that terrorist organization’s direction or control” § 2339B(h), and the Supreme Court explained that “ ‘service’ similarly refers to concerted activity, not independent advocacy.” However, the Court declined to explain “exactly how much direction and coordination is necessary for an activity to constitute a ‘service’ ” in hypothetical cases.
You present your research to your firm’s higher-ups, and they find the idea that writing an amicus brief constitutes “material support for terrorism” outrageous and probably unconstitutional. They would like to challenge the statute as applied to lawyers representing clients; if the challenge is successful, they will represent the Beneficent Society. (Procedurally, the firm would ask for a preenforcement injunction against enforcing the statute; in Holder the courts held that the plaintiffs had standing in a similar request.) What might be the basis for arguing that lawyers representing clients are something special?
One thing that bothers you about the case: You think it’s possible that the Society actually is what the government claims it is: a fund-raising arm of a terrorist group. How much, if at all, should that matter? How much should it matter if you also agree with the partners’ committee that the government’s argument about lawyers and amicus briefs is outrageous?
1.The best-known case on lawyers and material support concerns lawyer Lynne Stewart, who represented Sheik Omar Abdel Rahman, the “blind sheik,” who was the leader of the Islamic Group, a militant organization engaged in jihad against the United States, which planned bombings of several sites around New York City. Sheik Rahman was convicted in 1995 of several crimes and sentenced to life in prison, plus sixty-five years. He died in prison in 2017. Stewart was convicted of material support for terrorism because she helped Rahman pass messages from prison to his followers, contrary to Special Administrative Measures (SAMs) restricting his communications with the outside world.
Stewart signed an agreement to abide by the SAMs before she was permitted to visit her client in prison. In the Sheik’s case, the SAMs—authorized by a federal regulation—specified that the Sheik would “not be permitted to talk with, meet with, correspond with, or otherwise communicate with any member, or representative, of the news media, in person, by telephone, by furnishing a recorded message, through the mails, through his attorney(s), or otherwise.” In contravention of this requirement, in June 2000, Stewart helped the Sheik communicate with Reuters press service, as he announced his withdrawal of support for a ceasefire between his group and the Egyptian government. Stewart denied that at the time she signed the agreement she intended to violate the SAMs; she formed that intention only after meeting with the Sheik and perceiving how harsh his regime of forced isolation was. The jury did not believe her.
168Stewart’s case received widespread attention, in part because Stewart herself was an appealing sixty-two-year-old grandmother who had no ideological sympathy with Islamic terrorism. In an interview, Stewart said, “There are a hundred lawyers who would do exactly what I did. There are a million lawyers who would do almost exactly what I did. Because this is the way you have to represent clients.”90 Criminal defender and legal theorist Abbe Smith expands on this point:
Defense lawyers often become intensely identified with clients, perhaps especially so when the client is a social or political pariah. When everyone else is against the client the lawyer “pumps up the volume” a bit. Add to this the criminal defender’s tendency to flaunt authority, and you get defenders who are willing to break a rule here or there, especially when it comes to autocratic places like jails and prisons. Stewart may not have meant to further violence when she communicated her client’s message; she may have seen herself as resisting overly harsh prison rules and asserting what she deemed to be her client’s fundamental right of self-expression.
The truth is zealous lawyers contemplate getting in a little trouble from time to time, though they do not expect to be criminally prosecuted. What defender has not on occasion violated a prison rule, passed on a communication they probably should not have passed on, attempted to soften an otherwise harsh criminal justice system? More importantly, what zealous, devoted defender refrains from speaking for clients simply because they are told not to?
I find it hard to believe that Stewart acted as she did to promote or carry out terrorism in the name of the suffering people of Egypt. Prior to agreeing to represent the sheik—about which Stewart initially had misgivings—there is no indication that Stewart knew anything about, much less passionately believed in the sheik’s cause. There is no indication she had especially strong views about politics in the Middle East.91
What follows from Smith’s argument? To what extent does it mitigate Stewart’s conduct? One reason her case attracted such concern is that defense attorneys worried that it signaled a crackdown on lawyers willing to defend terrorists, who were already suffering substantial public vilification.92 Stewart was herself subject to death threats.
2.Should a defender be compelled to sign an agreement not to violate SAMs? At least one federal judge thought not. William Young, the trial judge in the case of Richard Reid—the Al Qaeda “shoe bomber” who attempted to detonate explosives packed into his sneakers on board an airliner—declined 169to require Reid’s counsel to sign an affirmation that they would abide by SAMs, reasoning:
The affirmation here unilaterally imposed by the Marshals Service as a condition of the free exercise of Reid’s Sixth Amendment right to consult with his attorneys fundamentally and impermissibly intrudes on the proper role of defense counsel. They are zealously to defend Reid to the best of their professional skill without the necessity of affirming their bona fides to the government. . . .
Nor is this all. The Court takes judicial notice, pursuant to Federal Rule of Evidence 201, that the government has indicted attorney Lynne Stewart, Esq., inter alia, for violating [the false statements statute], in that having signed the required affirmation, she violated the SAMs applicable to one Sheikh Abdel Rahman, and therefore knowingly made a false statement. Evidently, the government theorizes that the affirmation was knowingly false when made. Whatever the merits of this indictment, its chilling effect on those courageous attorneys who represent society’s most despised outcasts cannot be gainsaid.93
Although Judge Young’s opinion makes extensive reference to the Sixth Amendment right to counsel and suggests that he might have found unconstitutional the requirement that Reid’s counsel sign an agreement to abide by the SAMs, he did not reach the constitutional issue because the government agreed not to require Reid’s counsel to sign. Should the Sixth Amendment prevent the government from using SAMs?
3.Lynne Stewart was released from prison in December 2013 under a “compassionate release” after the court found that she had a limited risk of recidivism and, because she was battling terminal cancer. She died in 2017.
1 Murray L. Schwartz, The Professionalism and Nonaccountability of Lawyers , 66 Cal. L. Rev. 669, 673 (1978) . See also David Luban, Lawyers and Justice: An Ethical Study 52–55 (1988).
2 The term “standard conception of the lawyer’s role” originated in Gerald J. Postema, Moral Responsibility in Professional Ethics , 55 N.Y.U. L. Rev . 63, 73 (1980) .
3 Trial of Queen Caroline 8 (J. Nightingale ed. 1820–21).
4 Ted Schneyer, Moral Philosophy’s Standard Misconception of Legal Ethics , 1984 Wis. L. Rev. 1529 ; Stephen Ellmann, Lawyering for Justice in a Flawed Democracy , 90 Colum. L. Rev. 116 (1990) . For a discussion of Brougham’s view in historical and contemporary contexts, see Deborah L. Rhode, An Adversarial Exchange on Adversarial Ethics , 41 J. Legal Educ . 29 (1991) ; Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev . 1 (2005) ; Monroe H. Freedman, Henry Lord Brougham, Written By Himself , 19 Geo. J. Legal Ethics 1213 (2006) .
5Lawrence J. Vilardo & Vincent E. Doyle III, Where Did the Zeal Go?, 38 Litig. J. 1 (2011).
6 John G. Browning, The New Duty of Digital Competence: Being Ethical and Competent in the Age of Facebook and Twitter , 44 U. Dayton L. Rev. 179, 194–95 (2019) (discussing a case of inadvertent disclosure through a shared Box file).
7Mass. Rules of Prof’l Conduct R. 4.4(b).
8 Following the Restatement rule, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Op. 2011–2010 (2011), concluded that a lawyer who is mistakenly included on a confidential e-mail between opposing counsel and his clients must consult her client about the use of the information where it suggested potential fraud and was critical to settlement decisions.
9 N.Y. City Bar Ass’n Comm. on Prof’l Ethics, Op. 2012–1 (2012).
10 This position is taken by the bars of D.C., the City of New York, Illinois, Kentucky, Maine, Maryland, Michigan, New Hampshire, Ohio, Oregon, and Pennsylvania.
11 Louisiana, North Carolina, Utah, and Virginia take this tack. Florida requires the receiving lawyer to notify the sending lawyer, but otherwise declines to address the ethical questions.
12 D.C. Bar Op. 341 (2007).
13Marcia Coyle, Metadata Mining Vexes Lawyers, Bars, Nat’l. L.J. Online, Feb. 18, 2008; Inae Oh, Paul Manafort’s Lawyers Tried—and Failed—to Redact This Sensitive Legal Filing, Jan. 8, 2019, https://www.motherjones.com/politics/2019/01/paul-manafort-failed-redaction/.
14Mass. Rules of Prof’l Conduct R. 4.4 cmt. 2.
15 Am. Bar Ass’n, Metadata Ethics Opinions Around the United States , SR045 ALI-ABA 1275 (2010) .
16 See David Hricik, Mining for Embedded Data: Is it Ethical to Take Intentional Advantage of Other People’s Failures? , 8 N.C. J. L. & Tech . 231, 232–34 (2007) ; David Hricik, I Can Tell When You’re Telling Lies: Ethics and Embedded Confidential Information , 30 J. Legal Prof. 79 (2006) .
17 Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues , 5 Hum. Rts. 1, 1 (1975) .
18 Id . at 5–6.
19 Id . at 14.
20 Id . at 9.
21 Richard Wasserstrom, Roles and Morality , in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics 28 (David Luban ed., 1983).
22 Andrew Oldenquist, Loyalties , 79 J. Phil. 173, 176 (1982) . See also Simon Keller, The Limits of Loyalty (2007); George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (1993); Michael K. McChrystal, Lawyers and Loyalty , 33 Wm. & Mary L. Rev. 367 (1992) .
23 C.S. Lewis finds similar precepts in the Egyptian Book of the Dead, the Old Norse Volospa, the Babylonian Hymn to Samas, and miscellaneous other Egyptian, Hindu, Roman, and Biblical sources. C.S. Lewis, The Abolition of Man 97–100 (1947) .
24 Immanuel Kant, Foundations of the Metaphysics of Morals 39 (Lewis White Beck trans. 1959). For further discussion, see the material on moral reasoning in Chapter 1.
25 Id. at 47.
26 W. Bradley Wendel, Lawyers and Fidelity to Law (2010).
27 Blaine Harden & Saundra Torry, N.Y. Law Firm to Advise Swiss Bank Accused of Laundering Nazi Loot , Wash. Post, Feb. 28, 1997, at A3.
28 Id. ; Edward A. Adams & Daniel Wise, Controversy Ruffles Cravath Over Representing Swiss Bank , N.Y.L.J., Mar. 3, 1997, at col. 4.
29 Blaine Harden, When Client, Justice Are ‘Incompatible’; Lawyers Protest Firm’s Representation of Bank That Laundered Nazi Loot , Wash. Post , Mar. 13, 1997, at A15.
30 Id.
31 Id.
32 Id.
33 Saundra Torry, When the Sins of the Client are Visited on the Firm , Wash. Post , Mar. 3, 1997, at F7.
34 Id.
35 Id.
36 Ben W. Heineman, Jr., & David B. Wilkins, Too Hot to Handle , Am. Lawyer , July/Aug., 2011, at 49–50.
37Isaac Chotiner, A Harvard Law School Professor Defends His Decision to Represent Harvey Weinstein, The New Yorker, March 7, 2019.
38Kate Taylor, Harvard Drops Weinstein Lawyer as a Faculty Dean, N.Y. Times, May 12, 2019, at 27.
39Aidan F. Ryan, Harvard Law Prof Sullivan Defends Decision to Represent Weinstein Following Student Concerns, Harv. Crimson, Jan. 28, 2019.
40Chotiner, supra note 37.
41 Id.
42Lara Bazelon, Harvard Shouldn’t Punish Harvey Weinstein’s Attorney, Slate, May 13, 2019.
43Chotiner, supra note 37.
44Bazelon, supra note 42.
45Interview on Sonya Live with William Kunstler (CNN television broadcast, Nov. 5, 1993).
46Jodi Kantor and Megan Twohey, She Said: Breaking the Sexual Harassment Story That Helped ignite a Movement 101–02 (2019) (quoting Bloom).
47 Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics §§ 2.06 – 2.07, 4.02 (4th ed. 2002).
48 Deborah L. Rhode, In the Interests of Justice 79 (2000).
49 The rule creates exceptions when the barrister has too much pending work or the case would create a financial hardship. In practice, many observers believe that the exceptions come close to swallowing the rule.
50 Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities , 1986 Am. B. Found. Res. J. 613, 617 .
51 Id.
52 Alan Goldman, The Moral Foundations of Professional Ethics 129–30 (1980).
53 Rhode , supra note 48, at 57.
54 Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation , 85 Yale L.J. 1060, 1071–72 (1976) .
55 Edward A. Dauer & Arthur Allen Leff, Correspondence: The Lawyer as Friend , 86 Yale L.J. 573, 578 (1977) .
56 Norman W. Spaulding, Reinterpreting Professional Identity , 74 U. Colo. L. Rev. 1, 6–7 (2003) .
57 William Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics , 1978 Wis. L. Rev. 29, 108–09 .
58 Susan Wolf, Ethics , Legal Ethics, and the Ethics of Law , in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics 59 n.4 (David Luban ed., 1983).
59 Wendel , supra note 26; Stephen Ellmann, Lawyers and Clients , 34 UCLA L. Rev. 717 (1987) .
60 See, e.g., Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (2009); Katherine R. Kruse, Lawyers, Justice, and the Challenge of Moral Pluralism , 90 Minn. L. Rev. 389 (2005) .
61 Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (2008).
62 Id. at 93 .
63 Lon L. Fuller, The Adversary System , in Talks on American Law 30–32 (Harold J. Berman ed., 1961).
64 John H. Langbein, The German Advantage in Civil Procedure , 52 U. Chi. L. Rev. 823 (1985) .
65 John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition 133 (3rd ed. 2007).
66 Grundsätzen des anwaltlichen Standesrechts § 6(5). For further comparative readings on procedural norms, legal professions, and legal ethics in civil law systems, see Geoffrey C. Hazard, Jr. & Angelo Dondi, Legal Ethics: A Comparative Study (2004); Mirjan Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).
67 Monroe H. Freedman, Lawyers’ Ethics in an Adversary System 2 (1975).
68 Ronald Dworkin, Taking Rights Seriously 11 (1978).
69 David D. Blinka, Ethics, Evidence, and the Modern Adversary Trial , 19 Geo. J. Legal Ethics 1 (2006) .
70 This question is modeled on a hypothetical developed by Stephen Gillers.
71 David Margolick, Defense Tactics in the AIDs Doctor Suit , N. Y. Times , Jan. 23, 1990, at B1; Arnold H. Lubasch, Judge, in Shift, Discloses that Prego Will get $1.35 Million , N.Y. Times , Mar. 10, 1990, at B27–28.
72 Margolick, supra note 71, at B1 (quoting Susan Karten).
73For an account of Boies’ role see Kantor & Twohey, supra note 46, at 91; Ronan Farrow, Harvey Weinstein’s Army of Spies, New Yorker, Nov. 6, 2017.
74 James B. Stewart, David Boies Pleads Not Guilty, N.Y. Times, Sept. 21, 2018 (quoting Boies).
75 Deborah L. Rhode, David Boies’s Egregious Involvement With Harvey Weinstein , N.Y. Times, Nov. 9, 2017.
76L. Ray Patterson, Legal Ethics and the Lawyer’s Duty of Loyalty, 29 Emory L.J. 909, 912–13 (1980); Russell G. Pearce, Lawyers as America’s Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer’s Role, 8 U. Chi. L. Sch. Roundtable 381 (2001).
77 Robert T. Swaine, The Cravath Firm and Its Predecessors , 1819–1948, at 667 (1946).
78 Philippa Strum, Louis D. Brandeis: Justice for the People 40 (1984).
79 Robert Gordon, Lawyers as the American Aristocracy (unpublished lectures). For further discussion of this history, see Susan D. Carle, Lawyers’ Duty to Do Justice: A New Look at the History of the 1908 Canons , 24 Law & Soc. Inquiry 1 (1999) ; David Luban, The Noblesse Oblige Tradition in the Practice of Law , 41 Vand. L. Rev. 717 (1988) .
80 William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (1998).
81 Wendel , supra note 26, at 2, 168.
82 David Luban, Lawyers and Justice: An Ethical Study ch. 8 (1988).
83 Rhode , supra note 48, at 67.
84 United States v. Cintolo, 818 F.2d 980, 990 (1st Cir. 1987) (“a criminal lawyer has no license to act as a lawyer-criminal”).
85 Business transactions with clients are regulated by Model Rule 1.8(a) , but solely to protect the client.
86 David Lyons, Feds Snare Lawyers in Cali Cartel Net: The Defense Bar Sees, In Raids, Taps and Novel Theories, an Unprecedented Attack , Nat’l. L.J. , June 19, 1995, at A1.
87 Mary Hladky, Two Lawyers’ Convictions Junked: Federal Judge Reverses Jury on Some Florida Drug Counts, Though Others Stand , Nat’l. L.J. , June 21, 1999, at A5.
88 Lyons, supra note 86, at A1.
89 Rhode , supra note 48, at 74 (quoting Geoffrey Hazard). For more on the Cali cartel’s lawyers, see James L. Kelley, Lawyers Crossing Lines: Nine Stories of Greed, Disloyalty, and Betrayal of Trust (2001).
90 Interview by Susie Day with Lynne Stewart, in New York City, N.Y. (Nov. 1, 2002)
https://monthlyreview.org/2002/11/01/counter-intelligent/.
91 Abbe L. Smith, The Bounds of Zeal in Criminal Defense: Some Thoughts on Lynne Stewart , 44 S. Tex L. Rev. 31, 45, 50–51 (2002) .
92 Deborah L. Rhode, Terrorists and Their Lawyers , N.Y. Times , Apr. 16, 2002.
93 United States v. Reid, 214 F. Supp. 2d 84, 94–95 (D. Mass. 2002) .
The Lawyer-Client Relationship
The lawyer-client relationship is the foundation upon which legal ethics builds.1 Understanding how that relationship takes shapes, how it functions, and how it may come to an end is therefore critical to framing the obligations and dilemmas of professional role that we take up in the rest of the book. This chapter explores the following questions: When does a lawyer-client relationship form? What essential obligations does the creation of a lawyer-client relationship impose on the lawyer? Once the lawyer-client relationship is established, who gets to decide which issues? And how does the relationship end?
A lawyer-client relationship is formed when a client asks for legal assistance and the lawyer consents to provide it. And many relationships begin in an ordered, straightforward fashion—with a legal consultation, an explicit agreement by the lawyer to provide services, and the execution of a retainer agreement specifying the scope of representation. But sometimes, the circumstances surrounding the encounter between a lawyer and someone seeking legal help is more ambiguous. A lawyer may think that a client relationship clearly has not been formed, while the person seeking help may have the opposite view. How do we know who is right? For insight, consider the famous Seventh Circuit case below.
Westinghouse Electric Corp. v. Kerr-McGee Corp.
United States Court of Appeals for the Seventh Circuit
580 F.2d 1311 (1978).
n Opinion by Sprecher, Circuit Judge:
[This appeal raises the following issue:] whether an attorney-client relationship arises only when both parties consent to its formation or can it also occur when the lay party submits confidential information to the law party with reasonable belief that the latter is acting as the former’s attorney. . . .
The four separate appellants are some of the defendants in this antitrust case who were each denied their motions to disqualify the law 172firm of Kirkland and Ellis (“Kirkland”) from further representing the plaintiff Westinghouse Electric Corporation (“Westinghouse”). . . .
The complaint in this case was filed on October 15, 1976 and the four appellants moved to disqualify Kirkland in January and February 1977. On April 18, 1978, the district court filed a lengthy memorandum followed by orders denying the disqualification motions. These appeals followed. . . .
I
On September 8, 1975, Westinghouse, a major manufacturer of nuclear reactors, notified utility companies that 17 of its long-term uranium supply contracts had become “commercially impracticable” under § 2–615 of the Uniform Commercial Code. In response, the affected utilities filed 13 federal actions, one state action, and three foreign actions against Westinghouse, alleging breach of contract and challenging Westinghouse’s invocation of § 2–615. . . .
As an outgrowth of its defense of these contract actions, Westinghouse on October 15, 1976, filed the present antitrust action against 12 foreign and 17 domestic corporations engaged in various aspects of the uranium industry.
Kirkland’s representation of Westinghouse’s uranium litigation has required the efforts of 8 to 14 of its attorneys [from its Chicago office] and has generated some $2.5 million in legal fees.
Contemporaneously with its Westinghouse representation in the uranium cases, Kirkland represented API [American Petroleum Institute], using six of its lawyers [from its Washington, D.C. office] in that project.
In October, 1975, Congress was presented with legislative proposals to break up the oil companies, both vertically by separating their control over production, transportation, refining and marketing entities, and horizontally by prohibiting cross-ownership of alternative energy resources in addition to oil and gas. Since this proposed legislation threatened oil companies with a potential divestiture of millions of dollars of assets, in November, 1975, the API launched a Committee on Industrial Organization to lobby against the proposals. On December 10, 1975, API’s president requested that each company designate one of its senior executives to facilitate coordination of the Committee’s activities with the individual companies.
The Committee was organized into five task forces. The Legal Task Force was headed by L. Bates Lea, General Counsel of Standard Oil of Indiana, assisted by Stark Ritchie, API’s General Counsel.
On February 25, 1976, Ritchie wrote to Frederick M. Rowe, a partner in Kirkland’s Washington office, retaining the firm to review the divestiture hearings and “prepare arguments for use in opposition to this type of legislation.” On May 4, 1976, Ritchie added that the Kirkland 173firm’s work for API “should include the preparation of possible testimony, analyzing the probable legal consequences and antitrust considerations of the proposed legislation” and “you should make an objective survey and study of the probable effects of the pending legislation, specifically including probable effects on oil companies that would have to divest assets.” Ritchie noted that “(a)s a part of this study, we will arrange for interviews by your firm with a cross-section of industry personnel.” The May 4 letter to Rowe concluded with:
Your firm will, of course, act as an independent expert counsel and hold any company information learned through these interviews in strict confidence, not to be disclosed to any other company, or even to API, except in aggregated or such other form as will preclude identifying the source company with its data.
On May 25, 1976, Ritchie sent to 59 API member companies a survey questionnaire seeking data to be used by Kirkland in connection with its engagement by API. In the introductory memorandum to the questionnaire, Ritchie advised the 59 companies that Kirkland had “ascertained that certain types of data pertinent to the pending anti-diversification legislation are not now publicly available” and the API “would appreciate your help in providing this information to Kirkland. . . .” The memorandum included the following:
Kirkland, Ellis & Rowe is acting as an independent special counsel for API, and will hold any company information in strict confidence, not to be disclosed to any other company, or even to API, except in aggregated or such other form as will preclude identifying the source company with its data. . . .
The data sought was to assist Kirkland “in preparing positions, arguments and testimony in opposition to this type of legislative (divestiture)” and was not to be sent to API but rather to Kirkland.
Pursuant to the provision in Ritchie’s May 4, 1976 letter to Rowe that interviews would be arranged with a cross-section of industry personnel, Nolan Clark, a Kirkland partner, interviewed representatives of eight oil companies between April 29 and June 15, 1976.
After going through several drafts, the final Kirkland report to API was released on October 15, 1976. The final report contains 230 pages of text and 82 pages of exhibits. References to uranium appear throughout the report and uranium is the primary subject of about 25 pages of text and 11 pages of exhibits. The report marshals a large number of facts and arguments to show that oil company diversification does not threaten overall energy competition. In particular the report asserts that the relatively high concentration ratios in the uranium industry can be expected to decline, that current increases in uranium prices are a result of increasing demand, that oil company entry into uranium production has stimulated competition and diminished concentration, that oil 174companies have no incentive to act in concert to restrict coal or uranium production and that the historical record refutes any charge that oil companies have restricted uranium output. The report concludes that “the energy industries, both individually and collectively, are competitive today and are likely to remain so.
As noted at the outset of this opinion, the API report was issued on the same day as the present antitrust suit was filed against several defendants, including Gulf, Kerr-McGee and Getty.
The district court concluded that “[a] comparison of the two documents reveals a rather basic conflict in their contentions and underlying theories.” The court also observed that “[p]erhaps in recognition of the diametrically opposing theories of the API report and the Westinghouse complaint, Kirkland does not attempt to rebut the oil companies’ charges that it has simultaneously taken inconsistent positions on competition in the uranium industry.”
Gulf, Kerr-McGee and Getty are substantial dues-paying members of API. Kerr-McGee and Getty are also represented on API’s board of directors.
At Ritchie’s request, the cross-section interviews were mainly arranged by Gerald Thurmond, Washington Counsel of Gulf Oil Company and a member of API’s Antitrust Strategy Group. On May 11, 1976, Thurmond advised Gulf officials that Nolan Clark of Kirkland planned to visit them. Attached to Thurmond’s letter were the questions “which will be covered” in the meeting.
The meeting was held on May 28, 1976 in Denver. Nolan Clark represented Kirkland. In attendance for Gulf were six vice presidents, a comptroller and a regional attorney. Also present was a Harvard professor who “also is working with API on the same subject.” The meeting lasted more than two hours followed by lunch, during which discussions continued. After the meeting and in three letters from Gulf vice president Mingee to Clark dated August 10, 11 and 13, Gulf submitted specific information sought by Clark through the questionnaire and other written questions and in each letter Mingee stressed the confidential basis upon which the information was supplied.
Nolan Clark’s interview with two Kerr-McGee vice presidents took place in Oklahoma City on June 9, 1976 and lasted about three hours. Clark was given considerable background information on Kerr-McGee’s uranium industry, including mining locations, uranium conversion process, and pellet fabrication. On the subject of uranium marketing and pricing, one of the Kerr-McGee vice presidents described the escalating prices and tightening supplies in the current market, and the reasons behind the trends. Kerr-McGee sent its completed questionnaire to Clark on August 25, 1976.
Kirkland did not interview any Getty personnel. However, Getty received the confidential API questionnaire which requested it to 175estimate the value of its assets subject to proposed divestiture and its research and development outlays in alternative energy fields. Getty completed the questionnaire and mailed its data sheets to Nolan Clark on June 4, 1976, with the understanding that the data would be held in confidence.
II
The crux of the district court’s determination was based upon its view that an “attorney-client relationship is one of agency to which the general rules of agency apply” and “arises only when the parties have given their consent, either express or implied, to its formation.” . . .
Of course in many respects and situations an attorney acts as a simple agent for the client, but the attorney is held to obligations to the client which go far beyond those of an agent and beyond the principles of agency, just as they transcend the legal bounds of an arms-length commercial transaction. Mr. Chief Justice (then Judge) Burger said . . .
The basic elements of the attorney-client relationship are not changed because the contract for services is expressed in a formal written contract. Indeed the very making of a formal contract and its performance impose a high duty on the attorney because he is dealing in an area in which he is expert and the client is not and as to which the client must necessarily rely on the attorney. . . . This is not to suggest that a formal contract is unimportant but rather that a formal long-term contract, superimposed on the normal attorney-client relationship, alters the relationship only by adding new dimensions of duties and obligations on the attorney.
For these reasons it is obvious why an attorney-client relationship does not arise only in the agency manner such as when the parties expressly or impliedly consent to its formation as the district court erroneously concluded.
The district court first determined that there existed no explicit or express attorney-client relationship in that no oil company representative requested Kirkland to act as its attorney orally or in writing and Kirkland did not accept such employment orally or in writing. The district court found that “Kirkland sent its legal bills to the API, and was compensated only by the API.” A professional relationship is not dependent upon the payment of fees nor, as we have noted, upon the execution of a formal contract.
The court then purported to determine whether the professional relationship “may be implied from the conduct of the parties.” First, it found no “indicia” such as “the preparation of a legally-binding document like a contract or a will, or the attorney’s appearance in a judicial or quasi-judicial proceeding.” Second, the court searched for evidence of three fundamental characteristics of an agency relationship: the power to affect the legal relations of the principal and others; a fiduciary who 176works on behalf of his principal and primarily for his benefit; and a principal who has the right to control the conduct of the agent. Using these tests, the court concluded that “[v]iewed in its totality, we believe that the evidence shows that no attorney-client relationship has existed between Kirkland and the oil companies.” As we have indicated, to apply only the agency tests is too narrow an approach for determining whether a lawyer’s fiduciary obligation has arisen. . . .
III
The client is no longer simply the person who walks into a law office. A lawyer employed by a corporation represents the entity but that principle does not of itself solve the potential conflicts existing between the entity and its individual participants. . . .
Here we are faced with neither an ordinary commercial corporation nor with an informal or unincorporated association, but instead with a nation-wide trade association with 350 corporate and 7,500 individual members and doing business as a non-profit corporation.
We need not make any generalized pronouncements of whether an attorney for such an organization represents every member because this case can and should be decided on a much more narrow ground. . . .
The professional relationship for purposes of the privilege for attorney-client communications “hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.” The affidavits before the district court established that: the Washington counsel for Gulf “was given to believe that the Kirkland firm was representing both API and Gulf;” Kerr-McGee’s vice president understood a Kirkland partner to explain that Kirkland was working on behalf of API and also its members such as Kerr-McGee; and Getty’s vice president stated that in submitting data to Kirkland he “acted upon the belief and expectation that such submission was made in order to enable [Kirkland] to render legal service to Getty in furtherance of Getty’s interests.” . . .
The professional relationship does not arise where one consults an attorney in a capacity other than as an attorney. The district court said that the Kirkland “firm’s involvement was that of an expert consultant and researcher.” The questionnaire sent to 59 oil company members of API represented to the recipients that the Kirkland firm “is acting as an independent special counsel for API.” The API letter employing Kirkland expressly said that “[y]our firm will, of course, act as an independent expert counsel.” The lobbying-type functions undertaken by Kirkland in this case are not foreign to lawyers and in fact are a common undertaking by Washington, D. C. lawyers. In soliciting confidences from API members, Kirkland did not disavow its capacity as attorneys but came expressly represented as lawyers. . . .
Affirmed in part; Reversed and Remanded in part.
1771.What is the court’s holding in Westinghouse? Does the court find that Kirkland had established a lawyer-client relationship with API’s members? What type?
2.What consequence flows from the court’s holding in Westinghouse?
3.The Restatement (Third) of the Law Governing Lawyers § 14, cmt. e states:
. . . . Even when a lawyer has not communicated willingness to represent a person, a client-lawyer relationship arises when the person reasonably relies on the lawyer to provide services, and the lawyer, who reasonably should know of this reliance, does not inform the person that the lawyer will not do so. . . . In appraising whether the person’s reliance was reasonable, courts consider that lawyers ordinarily have superior knowledge of what representation entails and that lawyers often encourage clients and potential clients to rely on them. . . .
Was it reasonable for the members of API to believe that Kirkland was representing them in the lobbying matter? In this regard, does the language in the questionnaire stating that Kirkland “is acting as an independent special counsel for API” reinforce or cut against that belief? How much should it matter that the representatives of API member groups were sophisticated actors?
4.Could this case have been decided in favor of protecting the confidences of the API members without ruling on whether a professional relationship existed?
5.Note that even when a lawyer-client relationship has not been established, a lawyer has a duty to protect confidential information gained in initial consultation with a prospective client and must generally avoid representing interests adverse to that prospective client in the same or a substantially related matter. The law firm of an attorney who gains confidential information from a prospective client may represent a client with adverse interests if the attorney with the confidences limited her exposure and is screened off from the adverse representation. See Rule 1.18(b)–(d).
6.Westinghouse illustrates a central principle of legal ethics: The creation of a lawyer-client relationship—explicitly by agreement or implicitly under the standard articulated in the case—means that the lawyer carries the full set of client duties, including the duty to avoid conflicts of interest. As we will discuss in the next chapter, whether a professional relationship has been formed also determines whether communications between a lawyer and client fall under the attorney-client privilege, which protects a lawyer from being compelled to reveal confidential communications in court or before a similar tribunal.
7.How much control does a lawyer have in defining when his or her actions constitute legal representation on behalf of a client (thus gaining protection of the privilege) and when they do not? This question came up in relation to 178Rudy Giuliani’s work on behalf of President Trump in the Ukraine, which led to Trump’s impeachment. In that case, Giuliani made a number of trips to convince Ukrainian officials to open corruption investigations (including one focused on the son of Joe Biden, a main political rival) that would benefit Trump’s campaign for reelection. When asked by a reporter for The Atlantic about the extent to which these efforts (widely viewed as, at best, deeply inappropriate and, at worst, illegal) were at the behest of the President, Giuliani replied: “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.” However, when Giuliani was subpoenaed by Congress to turn over documents in relation to the impeachment inquiry, he refused on the ground that the documents were covered by the attorney-client privilege—which would mean that he was representing Trump. To what extent should a court hold a lawyer like Giuliani to public statements about the nature of his relationship or defer to subsequent changes in how the relationship is characterized? What evidence would be relevant in determining whether a lawyer-client relationship existed and how would a court gain access to it?
After experiencing severe headaches, Peter Talesh was admitted to the hospital, where tests determined that he had suffered an aneurysm in a large artery supplying blood to the brain. Emergency surgery was performed by the attending physician, who placed a metal clamp on the artery, cutting off the supply of blood in order to relieve pressure on the aneurysm and allow it to heal. Instead, the clamp so severely reduced blood flow to Peter’s brain that his right arm and leg became paralyzed.
Fourteen months later, Peter’s wife, Carol, met with an attorney, Abraham Winkler, to discuss whether her husband had any claims against the doctor for medical malpractice. At that meeting, Carol described the circumstances surrounding her husband’s injury and answered questions about the incident put to her by Winkler. At the conclusion of the meeting, which lasted forty-five minutes, Carol recalled Winkler telling her that “he did not think we had a legal case; however, he was going to discuss it with his partner.” When she did not hear from Winkler after one week, she concluded that he had come to the conclusion that “there wasn’t a case.” Winkler made no other contact with Carol, and she was not billed for the meeting.
One year later, Carol ran into an old friend, who happened to be a medical malpractice lawyer, and she described what had happened to her husband. Her friend expressed shock that she had not pursued a lawsuit against the doctor, stating that he thought she had a strong claim for medical malpractice. When Carol asked if he would take her case, the friend told her: “I’m sorry, but this type of claim has a two-year statute of limitations, so you are now barred from filing a lawsuit.”
Could Carol sue Winkler on the ground that they had established a lawyer-client relationship and, in giving legal advice about her claim, he 179negligently failed to inform her of the two-year statute of limitations?2 Would it matter that Peter rather than Carol would have been the plaintiff in a medical malpractice action?
References: Rule 1.18, Restatement (Third) of the Law Governing Lawyers § 14.
B.Duty of Care: Competence and Communication
A professional relationship may be formed on the basis of explicit or implicit understandings between the lawyer and client. As Westinghouse demonstrated, such a relationship may arise even when a lawyer does not intend to create one, if the lawyer has acted in a way that makes it reasonable for someone in the client’s position to believe that the lawyer agreed to the representation. Why does this matter? Because, as we also saw in Westinghouse, the creation of a lawyer-client relationship—even if implied by circumstances and not desired by the lawyer—means that the lawyer is bound to follow professional duties of loyalty (e.g., maintaining confidences and avoiding conflicts) and care. In later chapters, we will explore the loyalty duties related to confidentiality (Chapter 6) and conflicts of interest (Chapter 9). In this part, we focus on core aspects of the duty of care, specifically, the duty to provide competent representation and communicate effectively with the client.
Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 2 to the Rule makes clear that:
[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
Comment 5 emphasizes that competence “includes adequate preparation,” which is determined “in part by what it as stake; major 180litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.”
In addition to the basic competence standard, Rule 1.3 specifies that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Failure to exercise diligence constitutes client neglect. When a lawyer fails to file a brief on time or misses a hearing in court, without adequate grounds for excuse, such conduct could be prosecuted in a disciplinary proceeding as a violation of Rule 1.3.
Remember that these are the minimum standards applicable to all lawyers under the professional rules. There are other standards that may also apply depending on the particular context. For instance, as we will see in Chapter 8’s discussion of conflicts of interest in criminal defense, the Sixth Amendment right to counsel in a criminal case has been interpreted as requiring “effective assistance of counsel,” which is measured against an “objective standard of reasonableness.” Reversal under this standard is mandated when, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
In the following passage, Richard Abel describes facts from the disciplinary case of a New York lawyer who represented immigrant clients referred to him by so-called “travel agencies”—companies that charge immigrants for services and referrals connected to their immigration cases. Consider the case in connection with Rules 1.1 and 1.3.
Richard L. Abel, “Practicing Law in Filene’s Basement”
84 North Carolina Law Review 1449, 1452–62 (2006).
Joseph F. Muto was admitted to the New York bar in January 1987. Although he worked in Syracuse for a real estate firm, for the District Attorney, and twice as a solo practitioner, he never established a successful practice. After ten years he moved to New York City. In response to an advertisement, he began doing immigration cases for attorney David Rodkin. After a few months, having seen how much money could be made in immigration law, he left with another employee, Karen Jaffe, both of whom opened individual practices in Chinatown. . . .
[One of Muto’s clients was] Chang Kui Lin. Lin testified that he paid a “snakehead” $30,000 to smuggle him into Mexico by boat in 1992, then to Los Angeles on foot, and finally to New York by plane. In March 1993, he applied through Xing Rong Service Company for a work authorization card, which was granted and renewed annually. When that agency closed he switched to Blue Eagle. In 1997, Blue Eagle employee Tiffany Dong notified him of a political asylum hearing based on China’s coercive family planning policy—the first he had heard of the application. On November 10, he gave the agency his papers, including 181his wife’s abortion certificate. The agency took him to the Immigration and Naturalization Service (“INS”) hearing but failed to prepare, and asylum was denied. On February 6, 1998 Dong told Lin to appear for the Immigration Court (“IC”) master calendar on February 26. That day he went to Blue Eagle, paid $250, and was taken to the courtroom by Eddie Ye (Dong’s husband). . . . [Immigration Judge Ferris scheduled a merits hearing on Lin’s asylum claim for November 3.] Ye took Lin to the November 3 hearing and “told me that this Mr. Muto is my attorney.” Lin had never met Muto before and did not choose him, pay him, or sign a notice of appearance. . . .
When Judge Ferris reprimanded Muto at the November 3 hearing for his “totally inadequate” . . . change of venue motion he answered: “I wasn’t aware, Your Honor.” He could not explain his failure to file the necessary documents. . . . Consulting with his client for the first time, Muto said Lin had “advised me he had trouble procuring the documents from his wife in China.” . . . Judge Ferris gave Muto two weeks to explain why he hadn’t moved to enlarge the time. “That’s what lawyers do,” Judge Ferris said. Muto promised, “[y]ou will have it.”
Lin could not see Muto before the next hearing on January 20, 1999, because the lawyer had given him neither a business card nor an office address. Ye once again took Lin to court. Another lawyer, Claude Maratea, appeared for Muto “of counsel” because, Lin said, “the Judge did not like this Muto to be at the hearing.” Judge Ferris observed that service on Muto at his home address had failed three times, and said, “I will note for the record that I saw him earlier. That he muttered something and then went scurrying out of my courtroom. I’m going to require Mr. [ ] Muto to be produced on this case.” When he was produced, Muto said “I had to accept responsibility, Your Honor. I didn’t prepare the motion [to enlarge the time to file.] I wasn’t sure exactly how you wanted it. I hadn’t done one before.” When Judge Ferris accused him of having “just ignored it,” he objected, stating that “[i]t actually slipped through the cracks. I apologize.”
Judge: I don’t think it’s appropriate for you to represent this individual because you’re not representing him in [a] fair manner. . . . And then by sending in another lawyer who you knew could not answer any of these questions, because you walked out of my courtroom muttering that you weren’t going to appear in this case.
Muto:I was feeling nervous coming in here, Your Honor.
Judge:Counsel, frankly, given the quality of your representation, that is the first appropriate response I have heard from you.
Judge Ferris gave him a week “to file a motion with me as to your law office failures in this matter.”
182Judge:I expect you to set up an appointment immediately with your client at an address. Do you have any business cards with you?
Muto:I kind of ran out of business cards today, Your Honor.
Judge:Yes, that’s what you tell me every time.
When Ye brought Lin back to court a week later, Judge Ferris asked Muto about the motion “to be filed no later than yesterday.”
Muto:I did not do it, Your Honor. I had planned. . . .
Judge:Mr. Muto, I’m requesting the Chief Judge of the United States Immigration Court to sanction you. . . .
Muto:I was going to do the work over the weekend. My mother is in the hospital for surgery. She’s very ill. And I have the name of the social worker at the hospital who [can] attest to that to verify what I’m saying.
Judge:Well, Mr. Muto, that’s not how you do it. Right? You know perfectly well it’s not the court’s job to call social workers at hospitals.
Calling his representation “less than stellar,” Judge Ferris gave him another week to file the motion. Otherwise, Judge Ferris said,
I will not allow you to be this man’s attorney anymore. . . . [You] couldn’t even write to The Court and ask for an extension claiming a family emergency, but . . . I’ve seen you in the court every day this week . . . you find the time to represent your clients or you get out of practice. I am tired of you, Mr. Muto, because you never meet your deadlines. . . . And you are hurting people and I am not going to be a party to that. Hear me well and hear me clearly. This record is going to the Appellate Division, Disciplinary Committee in its entirety. And I’m requesting action against you.
Muto filed his motion for consideration of late evidence. The bailiff called the case at noon the next day, but Muto was not present. Judge Ferris opened the hearing by saying: “I will note that Mr. Muto has poked his head in my door a couple of times this morning, but he has never stopped and he has never made a formal representation on the record as to why his client is not here.”
She denied the asylum application and ordered Lin deported. When both Muto and Lin appeared ten minutes later she reopened the case, acknowledging it was scheduled for the next day, but challenged Muto’s claim to have an office at 5 Doyers Street. Muto insisted he had his own room:
Muto:Invite you or anyone to come down and look at it
183Judge:As a matter of fact, I tried to do that, Mr. Muto, and it could not be located in that building. . . . [S]hould someone misplace your business card, if they had it, they would have no way of contacting you because you’re unlisted. That is not a professional form of doing practice. . . .
Muto:That’s an upstate thing.
Judge Ferris rejected Muto’s excuses for delays in providing documentation, closed the record, and suggested voluntary departure. After consulting his client, Muto said Lin would accept it; but questioned by Ferris, Lin insisted on pursuing his application. In the subsequent disciplinary hearing, Muto attempted to explain why he accepted the voluntary departure. He said he had feared there was:
[P]robably at least a 50–50, if not greater chance that she would have that man taken into custody. That she would effectively—I don’t want to say a kangaroo court type hearing—but she would conduct a hearing in a very short span of time . . . deny his case, and then order him arrested. Muto claimed that Judge Ferris “was very angry at me. She has a problem with me. . . . I asked other lawyers if they would take the case over, and they overwhelmingly said no.”
Muto then moved to withdraw as counsel because Lin “has not been completely up front with me.” Muto said he had “no clue that this case was on for today,” and the judge’s threatened grievance “will place me in a position where I would be possibly impeaching my client.” Judge Ferris questioned his good faith but gave him a day to file a formal motion to withdraw. . . .
The next day Lin told Judge Ferris that Muto “asked me to have” Maratea represent him. Judge Ferris rebuked Muto: “[I]t’s inappropriate for you to be hiring him. . . . The Respondent is the one who hires his own lawyer. That’s the whole problem with this case. I have no evidence he ever hired you directly.” . . .
[Describing how he would get other lawyers, like Maratea, to take over his cases, Muto stated:]
I’ll say a few words in Chinese [spoken] . . . point my thumb up. And have somebody—maybe a court interpreter, maybe a paid interpreter of another lawyer, explain to them. . . . And I’ll say, good lawyer [repeated in Chinese]. . . . And that’s how every other lawyer does it. . . .
Judge Ferris reprimanded Muto for giving her the motion to withdraw late and for failing to follow regulations, but she eventually granted it. . . . Maratea [later] testified that Muto had asked him to handle Lin’s master calendar because Judge Ferris disliked Muto.
1841.At what point did Joseph Muto go wrong? When did his representation become incompetent? Should he have accepted Chang Kui Lin’s case in the first place?
2.At his disciplinary hearing Muto argued:
I provide quality legal services, Your Honor, at an affordable price for poor people who’ve been [gouged] and used by smugglers. . . . I give 150 percent of my effort and my time. I go in on Sundays very often. . . . I work ‘til 7:30 or eight at night. . . . I handle a lot of cases. And virtually every one of my clients is overjoyed and happy with my services. . . . I’m the only low budget lawyer in Chinatown. . . . I’m Filene’s basement. My office is physically in the basement. . . . [T]hese complaints which . . . high priced lawyers are bringing—this isn’t about justice. . . . This is Lord and Taylor trying to put Filene’s basement out of business.3
What do you make of that defense? Should it matter that (accepting the truth of his assertions), Muto was providing services to poor clients who would have otherwise likely gone without legal representation?
3.If you were on the New York state bar disciplinary committee hearing Muto’s case, what sanction would you impose? Recall the discussion of disciplinary sanctions in Chapter 3, which showed that solo practitioners were disproportionately likely to be disciplined and that client neglect was one of the most common grounds.
4.An important and evolving issue in relation to the duty of competence is the lawyer’s obligation to understand and stay current with technology. In 2012, the ABA modified Comment 8 to Rule 1.1 to make clear that competence includes keeping abreast of “the benefits and risks associated with relevant technology.” Thirty-eight states have now adopted a duty of technological competence. What this duty requires is still a work in progress as state bars make efforts to keep pace with the rapidly changing world of legal technology. However, there are some general guideposts. Like other types of information, if a lawyer is not familiar with a particular type of legal technology she is using or intends to use, the lawyer must either engage in appropriate study to get up to speed or, as the Louisiana State Bar stated in its opinion on the matter, obtain “advice from another lawyer or consultant about both technology and a lawyer’s ethical and professional responsibilities.”4 Commentators have identified a number of important issues that fall within the ambit of a lawyer’s duty of technological competence.5 For instance, cloud storage of client information has become increasingly prevalent—and poses tangible client risks. Most jurisdictions permit cloud storage but, like New York, require that lawyers take 185“reasonable care to ensure that the system is secure and that client confidentiality will be maintained.”6 Another issue of potential ethical concern is the use of law practice management software to keep track of legal deadlines. Courts have not been sympathetic to lawyers who have missed filing deadlines because of technological glitches with those software systems or failure to fully understand their function. For instance, courts have refused to excuse lawyers’ missed filing deadlines when an electronic calendaring system failed to calculate the correct date for appeal,7 or when attorneys relied on email notifications of a court ruling instead of reading the ruling itself (and thus failed to realize they had lost and needed to file an appeal).8
The discovery of electronically stored information (ESI), or e-discovery, remains a thorny issue. The problem arises when a client has ESI that may be relevant in a pending case, but the lawyer does not fully grasp the technological tools necessary to extract that information in order to comply with appropriate discovery requests and protect client interests. As a result, the client, or an outside expert selected to assist in e-discovery, may run an inadequate search that does not produce all relevant nonprivileged information or, conversely, may inadvertently execute an overbroad search that delivers privileged and/or irrelevant (but highly proprietary) information to a client’s adversary.
The California State Bar, in Formal Opinion 2015–193, addressed both aspects of the e-discovery problem.9 Although the bar recognized that “[n]ot every litigated case involves e-discovery,” it stressed that “almost every litigation matter potentially does.”10 Accordingly, the bar held that the “ethical duty of competence requires an attorney at the outset of each case to determine what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side.” In the bar’s terms, this duty requires the lawyer to:
The California Bar went on to say that an attorney without adequate e-discovery knowledge likely violates the duty of competence by failing to consult an e-discovery expert when it becomes clear that e-discovery is at issue; such an expert can help structure electronic searches so as to minimize the risk of disclosure of privileged and irrelevant information to the opposing party. In addition, the bar suggested that a lawyer may violate the duty of competence by failing to supervise the client or an outside expert in structuring e-discovery and overseeing its execution. The bar stressed that the “attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.”12 Thus, it is not sufficient for a lawyer to rely on an outside expert or a client’s IT department to design and execute searches.
Do you think this is a good rule? Given that the lawyer retains an expert precisely because she lacks sufficient knowledge of e-discovery, how should the lawyer conduct oversight?
Social media communications by clients and lawyers are another potential minefield that implicates lawyer competence. In its guidance on the issue, the D.C. Bar Association has stated that competence “may require lawyer review of client social media postings relevant to client matters” to ensure that social media postings are not inconsistent with claims made in litigation.13 On the flip side, a lawyer may be disciplined for failing to prevent a client from deleting relevant ESI,14 and this rule has been extended by state bars to client social media posts.15 Consider this issue when reviewing the materials on discovery abuse in Chapter 7.
How a lawyer should use artificial intelligence (AI) is another complex question given the developing state of the art. As the “Google Generation” enters the profession, reliance on internet searches conducted without deep evaluation of the source of information and how reliable it is may raise concerns about competence. Such searches, even in reputable databases like Westlaw and Lexis, rely on complex algorithms that can produce significant variation for similar search queries.16 How much should lawyers be held to understand those algorithms or, at least, to test the accuracy of a search engine through multiple queries before relying on its output? The New York State Bar, providing guidance on social media use, cautioned that “[i]f an attorney cannot ascertain the functionality of a website, the attorney must 187proceed with great caution in conducting research on that website.”17 Similar issues are raised when lawyers rely on AI in areas like technology-assisted data review in litigation or automated document assembly. The evolving standards of technological competence make clear that lawyers cannot defend against errors that harm clients by claiming ignorance of how the technology works. To the contrary, lawyers must make reasonable efforts to understand how the technology functions and what client risks it presents (through study or associating experts), or face professional discipline.
The lawyer-client relationship is built on candor and trust. This requires that there be a two-way exchange of information. As we will see, rules of confidentiality are designed to promote candid communication from client to lawyer. In addition, lawyers are obligated to provide ongoing information to clients about their cases, even about those strategic decisions that lawyers may be empowered to make on their own (see Part C, infra).
Rule 1.4 covers the lawyer’s duty to communicate with clients. It mandates, in section (a)(1), that the lawyer “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . . is required.” Thus, for example, if client consent is required before the lawyer can take on a case potentially posing a conflict of interest, the lawyer must provide the client with material information about the nature of the conflict and its potential impact on the client prior to consent. See Rule 1.7(b)(4). In addition, the lawyer is required by Comment 2 to Rule 1.4 to “promptly consult with and secure the client’s consent” prior to taking action on an issue—such as whether to settle a case or accept a plea—about which only the client is authorized to decide. See Rule 1.2(a), infra.
Even on questions of strategy and tactics, a lawyer under Rule 1.4(a)(2) is still required to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” while Rule 1.4(a)(3) and (4) make clear that the lawyer is otherwise required to “keep the client reasonably informed about the status of the matter,” and “promptly comply with reasonable requests for information.”
How much information is a client entitled to receive? Rule 1.4(a)(6) states that the lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Comment 5 suggests that what is “reasonably necessary” depends on the context, with the obligation for thorough explanation depending in part on the nature of the proceeding, the type of decision, and the time available for discussion. Overall, Comment 5 stresses that the “guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty 188to act in the client’s best interests, and the client’s overall requirements as to the character of representation.”
1.At one level, the duty to communicate with clients seems straightforward: lawyers cannot advance clients’ interests without understanding what clients want and, when lawyers take action on clients’ behalf or receive information from adversaries or courts, one expects lawyers to readily share that information with clients. However, the “failure to communicate” is, in fact, one of the most common ethics complaints against lawyers nationwide.18 Often, the problem goes hand in hand with other misconduct, especially client neglect. According to one commentator, this “dyad of misconduct is not surprising: if an attorney is not doing what he or she is supposed to be doing in a case, the attorney will probably not want to let the client know.”19 A recent case from Georgia illustrates this problem.20 It involved a lawyer, Charles Taylor, who, along with a nonlawyer associate, set up an LLC that advertised mortgage loan modification and bankruptcy services to homeowners facing foreclosure. Taylor routinely failed to supervise the nonlawyer associate in referring clients to the LLC, which would file skeletal bankruptcy petitions based on little evidence, and sometimes not file at all. Indeed, on several occasions, Taylor pocketed money conveyed by clients for bankruptcy filing fees, resulting in petitions being dismissed and clients’ homes being foreclosed upon. Perhaps unsurprisingly, Taylor failed to tell clients that he was keeping their money for his own fee, and refused to tell them why their petitions had been dismissed.21 The Georgia Supreme Court disbarred Taylor based on the totality of ethics violations, which included extreme negligence and failure to supervise his nonlawyer assistant. In other contexts, lawyers have been disciplined for failing to communicate plea offers to criminal defendants,22 and failing to make time to meet with personal injury clients.23
2.Communication violations can also arise in situations that do not involve deliberate misconduct. For instance, when two lawyers from different firms are working as co-counsel on the same matter, it may be unclear which lawyer is supposed to communicate information about which topics to their clients. Although, in this scenario, the duty to communicate falls equally on both lawyers (L1 and L2), one commentator has suggested that it would be ethically appropriate, at the outset of the co-counsel relationship, for the lawyers to gain client consent to delegate client communication to only one 189of the lawyers.24 In this view, “the client can simply agree that the services to be provided by L2 do not include reporting directly to the client, but rather communicating through L1. Practically speaking, this makes eminent sense, and many clients would prefer to have all communications directed to them through a single person—their lead counsel, L1.”25 Do you agree this makes “eminent sense”? What risks might it pose for the client?
3.What duty does a lawyer have to disclose to the client that she has committed malpractice-worthy errors in handling the case? It is well-settled that a lawyer must disclose the commission of material errors to current clients. The issue is what constitutes materiality. The North Carolina State Bar recently addressed this question and concluded that errors exist along a “spectrum” that include, on one end, those “errors that effectively undermine the achievement of the client’s primary objective for the representation, such as failing to file the complaint before the statute of limitations runs.”26 Errors are not material, on the other hand, if they are simply “nonsubstantive typographical errors” or involve “missing a deadline that causes nothing more than delay.” In the middle of the spectrum, errors “must be analyzed under the duty to keep the client reasonably informed about his legal matter. If the error will result in financial loss to the client, substantial delay in achieving the client’s objectives for the representation, or material disadvantage to the client’s legal position, the error must be disclosed to the client.”27 In analyzing the duty to disclose errors, the ABA Standing Committee on Professional Responsibility and Conduct, in Formal Opinion 481, summarized its view of materiality as follows: “An error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”28 What type of errors do you think would fall within category (b)?
4.Must a lawyer inform the client when the errors are discovered after representation is over? According to Formal Opinion 481, the answer is no. “Nowhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients.”29 Under the ABA’s analysis, the key issue is determining whether representation has, in fact, terminated, either by express statements or acts by the parties, or when it is objectively unreasonably to hold that the lawyer-client relationship still exists (as when, for example, the lawyer was retained to complete a discrete matter which has been accomplished). In the ABA’s view, because Rule 1.4 only refers to a lawyer’s duty to keep the “client” reasonably informed, termination relieves the lawyer of that duty since there is no longer any client with whom to communicate. Courts have generally followed this logic. The Connecticut 190Supreme Court rejected the idea that lawyers have continuing obligations after the end of representation to correct or report earlier wrongs, on the theory that such a continuing duty would be “futile because, once representation ceases, the initial wrong typically is complete, and in the usual situation, it no longer can be undone by the attorney.”30 However, at least one malpractice insurance carrier has disagreed, stating that it may be a breach of duty (and hence a basis for malpractice) for a lawyer to fail to report material errors to former clients.31 For authority, the carrier pointed to Rule 1.16(d), which requires a lawyer upon termination to “take steps to the extent reasonably practicable to protect a client’s interests.” Such steps, in the carrier’s view, should include informing the former client of prior material errors. Which view do you find more persuasive?
C.Allocation of Decisionmaking Authority
Because the lawyer is the client’s representative and can bind the client, the general rule is that the lawyer must defer to the client’s wishes. As discussed above, this suggests that the lawyer is generally bound to consult with the client before acting. However, consultation is not always practical. Lawyers are asked to make a vast number of decisions on behalf of clients, some under intense time pressure, and it is not feasible to require the lawyer to gain explicit authorization from the client with respect to each and every decision. Accordingly, lawyers must have discretion to make some decisions based on their understanding of the clients’ best interests. In addition, even when lawyers do have time to consult, they may have a different view of how to proceed than their clients based on their own expertise and experience. This raises several questions. On which issues do lawyers have authority to act on clients’ behalf? What is the appropriate course of action when a lawyer and client disagree over how to proceed in a matter? And what are the lawyer’s obligations when a client may have diminished capacity to make decisions?
Rule 1.2 offers guidance on the allocation of authority between lawyer and client. Rule 1.2(a) sets a basic “means-ends” dichotomy: Lawyers are permitted to make tactical decisions about means, while clients are entitled to define the ultimate ends of the representation. Specifically, Rule 1.2(a) states:
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. A lawyer may 191take such action on behalf of the client as is impliedly authorized to carry out the representation.
The Rule is generally vague as to what constitutes “the objectives of the representation” versus the “means by which they are to be pursued.” Instead, Rule 1.2(a) carves out issues which are deemed to be essential objectives and thus reserved to client decisionmaking. In the civil context, the Rule states that the “lawyer shall abide by a client’s decision whether to settle a matter.” And in the criminal context, the Rule compels the lawyer to defer to the client’s decision, after consultation, “as to a plea to be entered, whether to waive jury trial and whether the client will testify.”32
On the other end of the spectrum are tactical decisions that are considered to be squarely within the lawyer’s discretion. What are those “tactical” matters? The Restatement (Third) of the Law Governing Lawyers § 21, cmt. e provides that, absent a contrary instruction, the lawyer “may decide whether to move to dismiss a complaint and what discovery to pursue or resist,” and during a hearing, may “object to another party’s question, probe further answers of a witness, or seek a curative instruction.” Similarly, the ABA Criminal Justice Standards for the Defense Function, 4–5.2(d) offer the following examples of tactical decisions, to be “made by defense counsel, after consultation with the client”:
how to pursue plea negotiations, how to craft and respond to motions and, at hearing or trial, what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what motions and objections should be made, what stipulations if any to agree to, and what and how evidence should be introduced.
On tactical issues, over which lawyers’ have presumptive authority to make decisions, what happens when the client disagrees with the lawyer’s choices? Comment 2 to Rule 1.2 leaves the issue unresolved:
[2]On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. 192 Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement.
The Rule goes on to say that if the lawyer and client cannot agree, the lawyer may withdraw or the client may discharge the lawyer. Consider how these rules apply to the cases that follow.
2.Distinguishing Means from Ends
In the case below, Barnes was convicted in state court of robbery and assault. He instructed Michael Melinger, his assigned counsel, to raise several issues on appeal. Though the issues were nonfrivolous, Melinger omitted a few that he believed would not succeed. Barnes submitted a pro se brief presenting the issues that Melinger omitted, but his conviction was affirmed. Based on Melinger’s failure to raise the issues that Barnes had requested, Barnes filed for federal habeas relief, which was granted by the Second Circuit Court of Appeals, 665 F.2d 427 (2d Cir. 1981). The Supreme Court reversed.
Supreme Court of the United States
463 U.S. 745, 750–55, 758–64 (1983).
n Mr. Chief Justice Burger delivered the opinion of the Court.
We granted certiorari to consider whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant. . . .
In announcing a new per se rule that appellate counsel must raise every nonfrivolous issue requested by the client, the Court of Appeals relied primarily upon Anders v. California, 386 U.S. 738 (1967) [which held that an appointed attorney must advocate his client’s cause vigorously and may not withdraw from a nonfrivolous appeal]. There is, of course, no constitutional right to an appeal, but in Griffin v. Illinois, 351 U.S. 12, 18 (1956), and Douglas v. California, 372 U.S. 353 (1963), the Court held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent. It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. In addition, we have held that, with some limitations, a defendant may elect to act as his or her own advocate. Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right 193to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.
This Court, in holding that a state must provide counsel for an indigent appellant on his first appeal as of right, recognized the superior ability of trained counsel in the “examination into the record, research of the law, and marshaling of arguments on [the appellant’s] behalf,” Douglas v. California. Yet by promulgating a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed, the Court of Appeals seriously undermines the ability of counsel to present the client’s case in accord with counsel’s professional evaluation.
Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:
One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . “[E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” . . .
There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts—often to as little as 15 minutes—and when page limits on briefs are widely imposed. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments—those that, in the words of the great advocate John W. Davis, “go for the jugular,” in a verbal mound made up of strong and weak contentions.
This Court’s decision in Anders, far from giving support to the new per se rule announced by the Court of Appeals, is to the contrary. Anders recognized that the role of the advocate “requires that he support his client’s appeal to the best of his ability.” Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or 194our interpretation of that document requires such a standard. The judgment of the Court of Appeals is accordingly
Reversed.
n Justice Brennan, with whom Justice Marshall joins, dissenting. . . .
What is at issue here is the relationship between lawyer and client—who has ultimate authority to decide which nonfrivolous issues should be presented on appeal? I believe the right to “the assistance of counsel” carries with it a right, personal to the defendant, to make that decision, against the advice of counsel if he chooses.
If all the Sixth Amendment protected was the State’s interest in substantial justice, it would not include such a right. However, in Faretta v. California, 422 U.S. 806 (1975), we decisively rejected that view of the Constitution. . . .
Faretta establishes that the right to counsel is more than a right to have one’s case presented competently and effectively. It is predicated on the view that the function of counsel under the Sixth Amendment is to protect the dignity and autonomy of a person on trial by assisting him in making choices that are his to make, not to make choices for him, although counsel may be better able to decide which tactics will be most effective for the defendant. Anders v. California also reflects that view. Even when appointed counsel believes an appeal has no merit, he must furnish his client a brief covering all arguable grounds for appeal so that the client may “raise any points that he chooses.”
The right to counsel as Faretta and Anders conceive it is not an all-or-nothing right, under which a defendant must choose between forgoing the assistance of counsel altogether or relinquishing control over every aspect of his case beyond its most basic structure (i.e., how to plead, whether to present a defense, whether to appeal). A defendant’s interest in his case clearly extends to other matters. Absent exceptional circumstances, he is bound by the tactics used by his counsel at trial and on appeal. He may want to press the argument that he is innocent, even if other stratagems are more likely to result in the dismissal of charges or in a reduction of punishment. He may want to insist on certain arguments for political reasons. He may want to protect third parties. This is just as true on appeal as at trial, and the proper role of counsel is to assist him in these efforts, insofar as that is possible consistent with the lawyer’s conscience, the law, and his duties to the court.
I find further support for my position in the legal profession’s own conception of its proper role. The American Bar Association has taken the position that
when, in the estimate of counsel, the decision of the client to take an appeal, or the client’s decision to press a particular contention on appeal, is incorrect[, c]ounsel has the professional duty to give to the client fully and forcefully an opinion 195concerning the case and its probable outcome. Counsel’s role however, is to advise. The decision is made by the client. ABA Standards for Criminal Justice, Criminal Appeals, Standard 21–3.2, Comment, at 21–42 (2nd ed., 1980) (emphasis added).
The Court disregards this clear statement of how the profession defines the “assistance of counsel” at the appellate stage of a criminal defense by referring to standards governing the allocation of authority between attorney and client at trial. See ABA Standards for Criminal Justice, The Defense Function, Standard 4–5.2 (1980). In the course of a trial, however, decisions must often be made in a matter of hours, if not minutes or seconds. From the standpoint of effective administration of justice, the need to confer decisive authority on the attorney is paramount with regard to the hundreds of decisions that must be made quickly in the course of a trial. Decisions regarding which issues to press on appeal, in contrast, can and should be made more deliberately, in the course of deciding whether to appeal at all. . . .
[T]he Court argues that good appellate advocacy demands selectivity among arguments. That is certainly true—the Court’s advice is good. It ought to be taken to heart by every lawyer called upon to argue an appeal in this or any other court, and by his client. It should take little or no persuasion to get a wise client to understand that, if staying out of prison is what he values most, he should encourage his lawyer to raise only his two or three best arguments on appeal, and he should defer to his lawyer’s advice as to which are the best arguments. The Constitution, however, does not require clients to be wise, and other policies should be weighed in the balance as well.
It is no secret that indigent clients often mistrust the lawyers appointed to represent them. There are many reasons for this, some perhaps unavoidable even under perfect conditions—differences in education, disposition, and socio-economic class—and some that should (but may not always) be zealously avoided. A lawyer and his client do not always have the same interests. Even with paying clients, a lawyer may have a strong interest in having judges and prosecutors think well of him, and, if he is working for a flat fee—a common arrangement for criminal defense attorneys—or if his fees for court appointments are lower than he would receive for other work, he has an obvious financial incentive to conclude cases on his criminal docket swiftly. Good lawyers undoubtedly recognize these temptations and resist them, and they endeavor to convince their clients that they will. It would be naive, however, to suggest that they always succeed in either task. A constitutional rule that encourages lawyers to disregard their clients’ wishes without compelling need can only exacerbate the clients’ suspicion of their lawyers. As in Faretta, to force a lawyer’s decisions on a defendant “can only lead him to believe that the law contrives against him.” In the end, what the Court hopes to gain in effectiveness of appellate representation 196by the rule it imposes today may well be lost to decreased effectiveness in other areas of representation. . . .
Finally, today’s ruling denigrates the values of individual autonomy and dignity central to many constitutional rights, especially those Fifth and Sixth Amendment rights that come into play in the criminal process. Certainly a person’s life changes when he is charged with a crime and brought to trial. He must, if he harbors any hope of success, defend himself on terms—often technical and hard to understand—that are the State’s, not his own. As a practical matter, the assistance of counsel is necessary to that defense. Yet, until his conviction becomes final and he has had an opportunity to appeal, any restrictions on individual autonomy and dignity should be limited to the minimum necessary to vindicate the State’s interest in a speedy, effective prosecution. The role of the defense lawyer should be above all to function as the instrument and defender of the client’s autonomy and dignity in all phases of the criminal process. . . .
The Court subtly but unmistakably adopts a different conception of the defense lawyer’s role—he need do nothing beyond what the State, not his client, considers most important. In many ways, having a lawyer becomes one of the many indignities visited upon someone who has the ill fortune to run afoul of the criminal justice system.
I cannot accept the notion that lawyers are one of the punishments a person receives merely for being accused of a crime. Clients, if they wish, are capable of making informed judgments about which issues to appeal, and when they exercise that prerogative their choices should be respected unless they would require lawyers to violate their consciences, the law, or their duties to the court. On the other hand, I would not presume lightly that, in a particular case, a defendant has disregarded his lawyer’s obviously sound advice. The Court of Appeals, in reversing the District Court, did not address the factual question whether respondent, having been advised by his lawyer that it would not be wise to appeal on all the issues respondent had suggested, actually insisted in a timely fashion that his lawyer brief the nonfrivolous issues identified by the Court of Appeals. If he did not, or if he was content with filing his pro se brief, then there would be no deprivation of the right to the assistance of counsel. I would remand for a hearing on this question.
1.The Barnes majority employs reasoning that is overtly paternalistic: It justifies the attorney’s authority to override a client’s desires for the client’s own good. After noting that it is often counterproductive to barrage an appellate court with too many arguments, the majority concludes: “For judges to . . . impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy. . . .”
197Does the fact that Barnes submitted a pro se brief presenting “his” issues undercut or support the outcome? One might argue that if the appellate court was going to be barraged with the same arguments in any event, then the client had a right to have them presented by his attorney rather than pro se. The tactical choice was not whether to inundate the appellate court with arguments; rather, it was whether to inundate the appellate court with arguments presented by Barnes rather than the same arguments presented by Melinger. From this perspective, Barnes had the worst of both worlds: too many arguments and too little expert presentation. Conversely, one might argue that since the issues were presented by Barnes’s pro se brief, the appellate court was not denied an opportunity to consider them; Melinger’s omission was therefore harmless. Which position is most persuasive?
Would the Barnes decision have come out differently if Barnes had not submitted a pro se brief? Suppose that the appellate court, in affirming the conviction, had noted in dicta or during oral argument that it was not reaching certain issues because the defendant had not raised them. If these were the very issues that Barnes had wanted Melinger to raise, should it alter the result?
2.Commentators note that lawyers’ counseling falls on a spectrum: neutral information—suggestion—advice—urging.33 What limited empirical research is available indicates that lawyers vary greatly in terms of where they fall on this spectrum and how much they defer to clients on strategies that could determine outcomes. For example, one study of criminal defense lawyers found that only about a third believed that clients should make all important decisions and that about three-quarters thought that counsel should have the final say over whether to waive an affirmative defense. Lawyers divided over whether to obtain client consent before asking for a lesser included offense.34 Courts have also divided about what constitutes undue neutrality or coercion.35
Attorneys who fall on the neutrality end of the spectrum see their role as empowering clients and are reluctant to provide guidance that may unduly influence their decisions. As one public defender put it, “the defendant does the time, not me.”36 By contrast, other lawyers argue that such attitudes are likely to result in more defendants doing more time in prison than if attorneys attempted to guide plea bargaining decisions. As these lawyers note, many criminal defendants suffer from mental health impairments, and the stress and time pressures of the process may make rational decisionmaking difficult.37 The problems are compounded by 198cognitive biases that encourage individuals to make overly optimistic assessments of their own circumstances and capabilities.38 Some commentators argue further that withholding advice from a client is itself a form of paternalism, because it assumes that clients are incapable of weighing their attorney’s views and then making an autonomous judgment.39 Where would you put yourself on the counseling spectrum? Would it matter whether the case was civil or criminal or whether you were retained by the client or appointed by the court?
3.Can attorneys consider their own credibility in determining whether to advance a weak claim? Criminal defense lawyers routinely face issues about how to spend their “credibility capital” if they appear repeatedly before the same judges or bargain frequently with the same prosecutors.40
4.The dissenters in Barnes emphasize “the dignity and autonomy of a person on trial” and suggest that these values argue for deferring to a defendant’s choices even if they are not ones that experienced counsel would find prudent. How far does this argument extend? Is it consistent with Martinez v. Court of Appeal, 528 U.S. 152 (2000), in which the Supreme Court found no constitutional right to self-representation on a direct appeal of a criminal conviction? Martinez upheld a decision of the California Court of Appeals requiring a self-taught paralegal to accept a court-appointed lawyer for his appeal, although he had represented himself at his jury trial and had wished to do so again on appeal. Do Martinez and Barnes together imply that a lawyer who is forced on an appellant may then decline to brief arguments that the client wants to raise? Or should appellate lawyers who are appointed over defendants’ objections give greater deference to their clients than Barnes requires?
Although the right to self-representation extends only to trial proceedings, that includes the sentencing phase of trial; thus, a defendant cannot be compelled to accept the assistance of counsel in asserting mitigation claims. In United States v. Davis, 285 F.3d 378, 380 (5th Cir. 2002), the Fifth Circuit held that it was erroneous for the trial judge to appoint an “independent counsel” to “represent the interest of the public” in presenting mitigation evidence in a death penalty case, so as to ensure a “full and fair” penalty proceeding.
If defendants accept legal representation, are they bound to defer to their attorneys’ judgment about which arguments to present? Thus, for example, if a convicted defendant would find it humiliating to have facts 199about his abusive upbringing introduced as mitigating factors, must his counsel defer to the defendant’s priorities? See the Kaczynski case infra.
5.One commonly cited purpose of criminal punishment is to make defendants understand the seriousness and importance of the social norms that they have violated. Moreover, a wide array of criminal justice research indicates that procedural fairness and an opportunity to be heard are more important than the substantive outcome in shaping litigants’ perceptions of the justness of the legal system.41 Guilty defendants do not acknowledge the legitimacy of their punishment if the process appears unfair. Does this research undermine the view of the majority in Barnes that choices about which arguments to raise on appeal are purely tactical? Are concerns about the effectiveness and moral justification of criminal punishment better served by the dissenters’ position? Or are the client’s overriding interests in reducing the risks or severity of punishment best served by giving lawyers authority to mount the most effective defense?
6.One recent study found that, contrary to conventional wisdom, pro se defendants are convicted at rates equivalent to, or lower than, the conviction rates of felony defendants who have counsel. That study also found that the vast majority of pro se felony defendants, nearly 80 percent, do not display signs of mental illness. Most choose self-representation because of legitimate concerns about the quality of court-appointed counsel (an issue we explore in greater detail in Chapter 8).42 What implications do such findings have for how courts construe the right of self-representation?
7.Consider the following case, in which you are a court-appointed appellate lawyer representing an inmate taking a first appeal from a felony conviction. Your client appears bitter about the fact that he was not permitted to “tell his side of the story” at his trial. The transcript shows that he initially insisted that he wanted to testify, then withdrew his request after conferring with his lawyer. According to the lawyer, she had strongly and repeatedly resisted allowing the client to testify because of an admissible prior record, a transparently false alibi, and a rambling, incoherent speaking style. You explain to your client that the only way to raise the issue on appeal is to argue that the lawyer offered ineffective assistance by so exaggerating the risks of testifying that his will was “overborne.”43 This argument is a sure loser, and is likely to distract the court’s attention from the more promising issues you wish to raise on appeal. Yet the client is presenting a grievance that appears to be of considerable personal importance.
One possible solution is to raise this issue in the appellate brief without arguing it at any length. Is this an adequate compromise, or does it undercut both the lawyer’s and the client’s objectives?
200Is an issue that is certain to lose under prevailing doctrine, but one that raises real concerns, “frivolous” within the meaning of bar ethical rules? Rule 3.1 forbids the lawyer from presenting frivolous claims, and if there are no non-frivolous issues, the lawyer must attempt to withdraw. However, in Anders v. California, 386 U.S. 738 (1967), the Court held that states must put safeguards in place to protect clients from erroneous withdrawal by their appellate lawyers. Under the procedure that Anders proposed, attorneys who believed that the appeal was frivolous would move to withdraw. In addition, they would file an “Anders brief” setting forth “anything in the record that might arguably support the appeal.”44 But in Smith v. Robbins, 528 U.S. 259 (2000), the Court held that the Anders brief is not a constitutional requirement; alternative procedures, such as independent review of the record by the appeals court, are permissible.
If the only argument that the client wishes to press on appeal involves the coercive counseling issue, and the appellate court has rejected similar claims, should you file an Anders brief?
8.Some criminal defense lawyers do not file Anders briefs. One reason is that it seems disloyal. As one surveyed attorney explained: “[T]o me an Anders Brief is almost like a slap in the face to the client. Why are you even bothering to write the brief, if all you are going to say is here [are] all the reasons to deny relief. To me it sort of inherently conflicts with your obligation to represent your client zealously . . . [to say in a public document] my client is a loser, or his issues are loser issues.”45 Another reason some attorneys resist filing such briefs is that they turn out to be more work than the standard appellate brief. Another surveyed lawyer noted, “you have to argue why all these issues are not issues.”46 Then, if an appellate panel disagrees, the lawyer has to brief and argue a claim that the court almost always denies anyway.
What is your view? Is an Anders brief a useful compromise because it enables attorneys to maintain their credibility without totally foreclosing review of possible grounds for appeal? Or is it a largely formalistic exercise that undermines fundamental principles of client loyalty and effective assistance of counsel?
9.Is the decision whether to request a DNA test tactical? If the criminal defense lawyer believes that it would confirm the defendant’s guilt, must he or she raise the possibility with the defendant and defer to his choice?47
3.When Is Lawyer Paternalism Justified?
Jones v. Barnes illustrates conflicts that may arise when lawyers are intent on pursuing the best interests of their clients but are convinced that clients misunderstand their own interests. In such cases, lawyers 201may be tempted to act paternalistically, by interfering with the client’s choices for the client’s own good.
Such ethical dilemmas are longstanding, but they have come into sharper focus during the last quarter-century. Part of the reason involves the rise of public interest and legal services practice. Many lawyers in such practice settings have found themselves talking across cultural divides; differences in social, economic, racial, and ethnic backgrounds have sometimes made it hard to understand the full range of concerns and needs of clients. Just as importantly, clients have often viewed their problems in terms that are not readily translatable into legal categories or resolvable by the legal system. When lawyers reformulate clients’ goals in ways they know how to address, it can be hard for clients to keep control over the terms of representation.
Public interest, legal services, and criminal defense attorneys have been sensitive to such problems, because many of them are committed as a matter of principle to client empowerment and “democracy from the bottom up.” However, the issues of paternalism are by no means limited to these contexts. Attorneys who represent clients with impaired capacity have long struggled with these concerns. Juveniles, mental health patients, or individuals going through a traumatic life event may have difficulty evaluating their long-term interests. In other situations, individuals with little experience or interest in legal matters will often be tempted to leave crucial decisions up to their attorneys. The result may sometimes be to the clients’ practical advantage, but the price will be losing control over their own affairs.
The problem of attorneys defining client goals—or rather, attorneys assuming that client goals must be redefined to fit the limitations of the law or of their own capabilities and resources—is only one part of the paternalism problem. Other difficulties arise when lawyers consciously or unconsciously override or manipulate clients for “the client’s own good.” Consider the rather extreme example of Gary Gilmore, a convicted murderer, sentenced to death, who asked his lawyers, Mike Esplin and Craig Snyder, to drop all appeals because he wanted to be executed:
Gilmore said, “Now, don’t I have the right to die?” . . .
Gary told [his lawyers] of his belief that he had been executed once before, in eighteenth-century England. He said, “I feel like I’ve been here before. There is some crime from my past.” He got quiet, and said, “I feel I have to atone for the thing I did then.” Esplin couldn’t help thinking that this stuff about eighteenth-century England would sure have made a difference with the psychiatrists if they had heard it.
Gilmore now began to say that his life wouldn’t end with this life. He would still be in existence after he was dead. It all seemed part of a logical discussion. Esplin finally said, “Gary, 202we can see your point of view, but we still feel duty bound to go ahead on that appeal.”
When Gary said again, “What can I do about it?” Snyder answered, “Well, I don’t know.”
Gary then said, “Can I fire you?”
Esplin said, “Gary, we’ll make the judge aware that you want to can us, but we’re going to file anyway.” . . .
On the 3rd of November, Esplin got a letter from Gary. It read: “Mike, butt out. Quit fucking around with my life. You’re fired.” . . .
Despite being dismissed, the two defense attorneys later Wednesday filed a notice of appeal—in their names. . . .
They said it was “in the best interest” of the defendant.48
Despite his lawyers’ efforts, Gilmore was eventually executed by firing squad in Draper, Utah. His last words were: “Let’s do it.”49
Esplin and Snyder found Gilmore’s belief in reincarnation irrational. But millions of people around the globe hold such beliefs. And since the late 1970s, about 11 percent of executions have been voluntary.50 A survey of death row volunteers found that three-quarters had a documented mental illness and half had severe abuse disorders.51 This case, like some of those addressed in Chapter 14 on public interest representation, raise questions about when lawyers may justifiably impose their own views about the clients’ best interest and the objectives of representation.
To some commentators, paternalism is inappropriate under most circumstances. From a rights-based perspective, respect for individual autonomy counsels deference to freely-made choices concerning the conduct of one’s own life. And from a utilitarian perspective, evidence from a wide range of contexts suggests that people who exercise control over decisions are more likely to be satisfied with the outcome, and that clients who participate actively in the decisionmaking process often 203achieve better results.52 Other commentators, while acknowledging that clients’ involvement should be encouraged and their decisions generally respected, nonetheless believe that paternalism is sometimes morally justified. The materials that follow explore these views.
Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues”
5 Human Rights 1, 15–24 (1975).
One . . . pervasive, and I think necessary, feature of the relationship between any professional and the client or patient is that it is in some sense a relationship of inequality. This relationship of inequality is intrinsic to the existence of professionalism. For the professional is, in some respects at least, always in a position of dominance vis-à-vis the client, and the client in a position of dependence vis-à-vis the professional. To be sure, the client can often decide whether or not to enter into a relationship with a professional. And often, too, the client has the power to decide whether to terminate the relationship. But the significant thing I want to focus upon is that while the relationship exists, there are important respects in which the relationship cannot be a relationship between equals and must be one in which it is the professional who is in control. . . .
To begin with, there is the fact that one characteristic of professions is that the professional is the possessor of expert knowledge of a sort not readily or easily attainable by members of the community at large. . . . Moreover, virtually every profession has its own technical language, a private terminology which can only be fully understood by the members of the profession. . . . These circumstances, together with others, produce the added consequence that the client is in a poor position effectively to evaluate how well or badly the professional performs. In the professions, the professional does not look primarily to the client to evaluate the professional’s work. . . . In addition, because the matters for which professional assistance is sought usually involve things of great personal concern to the client, it is the received wisdom within the professions that the client lacks the perspective necessary to pursue in a satisfactory way his or her own best interests, and that the client requires a detached, disinterested representative to look after his or her interests. . . .
Finally, as I have indicated, to be a professional is to have been acculturated in a certain way. It is to have satisfactorily passed through a lengthy and allegedly difficult period of study and training. It is to have done something hard. Something that not everyone can do. Almost all professions encourage this way of viewing oneself; as having joined an elect group by virtue of hard work and mastery of the mysteries of the 204profession. In addition, the society at large treats members of a profession as members of an elite by paying them more than most people for the work they do with their heads rather than their hands, and by according them a substantial amount of social prestige and power by virtue of their membership in a profession. It is hard, I think, if not impossible, for a person to emerge from professional training and participate in a profession without the belief that he or she is a special kind of person, both different from and somewhat better than those nonprofessional members of the social order. It is equally hard for the other members of society not to hold an analogous view of the professionals. And these beliefs surely contribute, too, to the dominant role played by a professional in any professional-client relationship.
[The criticism of professionals I want to consider] might begin by conceding, at least for purposes of argument, that some inequality may be inevitable in any professional-client relationship. It might concede, too, that a measure of this kind of inequality may even on occasion be desirable. But it sees the relationship between the professional and the client as typically flawed in a more fundamental way, as involving far more than the kind of relatively benign inequality delineated above. This criticism focuses upon the fact that the professional often, if not systematically, interacts with the client in both a manipulative and a paternalistic fashion. The point is not that the professional is merely dominant within the relationship. Rather, it is that from the professional’s point of view the client is seen and responded to more like an object than a human being, and more like a child than an adult. . . .
It is, I believe, indicative of the state of legal education and of the profession that there has been to date extremely little self-conscious concern even with the possibility that these dimensions of the attorney-client relationship are worth examining—to say nothing of being capable of alteration. That awareness is, surely, the prerequisite to any serious assessment of the moral character of the attorney-client relationship as a relationship among adult human beings.
1.Above, Wasserstrom poses two related problems. First, he argues that the attorney-client relationship is structurally flawed, placing far too much power in the hands of the attorney. In effect, the lawyer rather than the client defines the strategies of representation, which typically leads lawyers to act in a paternalistic fashion toward their clients. Second, he suggests that paternalism is morally wrong. “The professional does not . . . treat the client like a person; the professional does not accord the client the respect that he or she deserves.” Who is the client that Wasserstrom envisions? Does the description fit the typical business client or wealthy individual seeking advice on tax or other financial issues? If Wasserstrom’s focus is on less sophisticated and powerful clients, is his criticism well taken?
2052.A study by William Felstiner and Austin Sarat of divorce cases documented some of the patterns Wasserstrom described. Many lawyers attempted to “control clients and maintain professional authority” by suggesting that only insiders such as themselves would be able to deal with the “chaotic ‘anti-system’ ” in which the client was embroiled.53 In some cases, attorneys appeared to find it in their interest to maintain dominance: A dependent client was a more compliant client.
On the other hand, in most private practice, power flows in both directions. As David Luban describes:
Lawyers, to be sure, exercise considerable leverage over their clients, who need their expertise, and that leverage can be abused. But we must not forget that private practitioners depend wholly on their clients for their livelihood, and this dependence is fundamental in the distribution of power. Lawyers may try to manipulate their clients, but such phenomena are of necessity relatively slight ripples on a vast ocean of lawyers’ economic dependence upon their clients.54
How might Wasserstrom reply? How would you?
3.Wasserstrom argues that lawyers’ paternalism is at best morally problematic, and at worst indefensibly dismissive of individual dignity and autonomy. Yet paternalism is a persistent feature of our legal landscape, as Duncan Kennedy reminds us:
[Lawmakers] have regulated the safety features of food and drugs, airplanes, railroads and boats, automobiles, fabrics for children’s clothing, and building materials. They have regulated the design of residential buildings, and of public buildings, in each case indirectly controlling what arrangements the owners of property could make with willing paying customers. They have regulated interest rates, the sale of securities, the structure of financial intermediaries and the contracts between corporations and their shareholders (both in and out of bankruptcy). They have developed whole panoplies of required terms for insurance contracts, the wages and hours of employment, occupational safety and health, occupational licensing, conditions of rental housing, terms of payment and non-payment of rent, consumer credit (truth in lending), security arrangements, door-to-door sales, franchising, sales of condominiums, condominium conversion, mine safety, pension and annuity contracts, union pension funds. They have required workers, as a condition of employment, to lay aside money 206for their old age, and required employers to join workmen’s compensation schemes.55
Bar ethical codes similarly include a broad array of provisions that prohibit lawyers from engaging in conduct that might be harmful to clients irrespective of their desires or consent. Examples include accepting an unreasonable fee; initiating a sexual relationship; handling a divorce or criminal case on a contingent fee basis; acquiring a financial interest in litigation; or preparing an instrument giving a lawyer a gift.56 Each is an instance of paternalism, which Dennis Thompson has defined as “the imposing of constraints on an individual’s liberty for the purpose of promoting his or her own good.”57
This definition highlights the moral problem posed by paternalism: “paternalism needs justification because it is a restriction of liberty.”58 As philosopher Samuel Gorovitz puts it:
Because we respect individuals, we subscribe to what has been called the Principle of Autonomy, the view that individuals are entitled to be and do as they see fit, so long as they do not violate the comparable rights of others. . . .
Because we care about the well-being of individual persons, we also grant a prominent place in the structure of our moral outlook to a second principle, often called the Principle of Beneficence. That principle, simply stated, holds that one ought to do good. . . . It is this principle that is typically invoked as the justification for overriding the Principle of Autonomy, when we limit someone else’s freedom in order to achieve what we see as being his or her own good.59
4.In these terms, the problem of paternalism is not whether paternalism is ever permissible (or required), but when: When does the Principle of Beneficence override the Principle of Autonomy, and when does it fail to override it?
Dennis Thompson proposes a three-part test for justifiable paternalism:
First, the decision of the person who is to be constrained must be impaired. . . . Second, the restriction is as limited as possible. . . . Finally, the restriction prevents a serious and irreversible harm.60
The first condition assures us that paternalistic intervention will not seriously offend the Principle of Autonomy, for a person whose 207decisionmaking is impaired is not acting in a fully autonomous way. The second condition requires consideration of less restrictive alternatives. The third condition acknowledges the Principle of Beneficence under circumstances that most individuals would find compelling. Yet each of the highlighted terms—impaired decision, limited restriction, and serious, irreversible harm—clearly requires further analysis, and can provoke significant dispute. Is a demonstrably foolish decision “impaired”? Under what circumstances might an imprudent gift or selfless act constitute a “harm”?61
Another approach emphasizes situation-specific justifications. In some contexts, anyone’s decisionmaking may be impaired, and reasonable individuals will consent to benign interventions in these cases. As Gerald Dworkin notes:
[S]ince we are all aware of our irrational propensities, deficiencies in cognitive and emotive capacities, and avoidable and unavoidable ignorance it is rational and prudent for us to in effect take out “social insurance policies.” We may argue for and against proposed paternalistic measures in terms of what fully rational individuals would accept as forms of protection.62
That is, we ask what one would consent to if one were fully rational. Under this approach, hypothetical consent becomes the touchstone of justifiable paternalism.
However, we do not know exactly what “the fully rational individual” is or would consent to. None of us, after all, is fully rational under all circumstances; perhaps not under any circumstances.63 In Problem 2 (set forth below), for example, consider the difficult questions that a lawyer must resolve in applying the hypothetical consent test: Is it irrational for someone with a painful terminal illness to commit suicide? Is it irrational for a partner to commit suicide if he or she is convinced that life alone is not worth living? These are questions about ultimate values—life, death, dignity, and love—which often have deep religious foundations. Such questions cannot be resolved through a value-free concept like “rationality.”
The preceding critiques suggest the difficulties in attempting to justify paternalism by some unitary principle. Building on this insight, Kennedy argues that there is no such thing as capacity in the abstract; there is only capacity to make particular decisions, and a lawyer may have little to go on beyond a firm conviction that a client’s judgment is distorted and the lawyer will be harming the client by following the client’s foolish instructions. Kennedy acknowledges, however, that such intuitions may well be erroneous:
208Paternalist action is inherently risky because it will make [clients] furious at you, and they may be right. If they are right, you will suffer twice: you will suffer with them the pain of the frustration of a valid project, and you will suffer on your own behalf . . . guilt that you have done them not just an injury, but an injustice. Even if it turns out that they were indeed suffering from false consciousness and that your intervention spared them a serious evil, they may not forgive you for taking things into your own hands.64
From this perspective, the problem of when paternalism is justified has no general “bright line” solution, because while we can often empathize with others, we can never be certain that our intuitions about their values, needs, and concerns are correct.
According to many commentators including Kennedy, paternalism is justified when we “believe that the other is suffering from some form of false consciousness that will cause him to do something that will hurt him, physically or financially or morally or in some other way.”65 In other words, the need for paternalistic protection arises because we are all prone to confusion between our deeply-held values, our immediate whims or wants, and our “objective” best interests. Paternalism may be less justifiable if an action seemingly against a client’s self-interest comes from that individual’s deeply-held values, whereas there may be a stronger justification for paternalism to protect the client’s long-term values or objective interests against momentary whims.
5.One obvious way for attorneys to avoid acting paternalistically is to inform their clients of the risks and benefits of different options, and then to accept their clients’ choices—or at least obtain their clients’ consent to the option recommended.
The moral significance of informed consent surfaced first in medical ethics. Until the mid-1900s, the unquestioned norm among physicians was paternalism toward patients. The Hippocratic oath enjoins physicians to “Do no harm,” and it was assumed that trained professionals were in a better position than patients to know what constituted harm. Many physicians believed that patients and their families were too anxious or ill-informed to be entrusted with life-and-death decisions. Moreover, the conventional wisdom was that giving patients bad news might itself jeopardize patients’ health.
Today, by contrast, the prevailing norm is quite different. Physicians expect to inform their patients about their illnesses and options and will not undertake even routine treatment without obtaining the patient’s informed consent. Further, in the medical context, tort liability backs up these norms, providing a right of action to a patient who is subjected to a non-emergency procedure, if the physician performs the procedure without furnishing adequate information about its risks and benefits.66
209Informed consent standards have been advocated, and in some instances adopted, for legal practice as well. Rule 1.0(e) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of reasonably available alternatives to the proposed course of conduct.” The Rules incorporate informed consent requirements in several key provisions, including those governing conflicts, which provide that conflicted lawyers shall not represent clients unless “each client consents after consultation.”67
In principle, informed consent seems like an attractive alternative to paternalism; in practice it is often difficult to apply. Some matters, such as the risks and benefits of representation that present a potential conflict of interest, may be too complex for inexperienced clients to assess. The difficulty is graphically illustrated by an antitrust class action involving claims against drug companies on behalf of antibiotics purchasers. Members of the class received notification that they would be bound by the result of the litigation unless they opted out. Letters that the attorney general received in response included the following:
Dear Sir:
I received your pamphlet on drugs, which I think will be of great value to me in the future.
Due to circumstances beyond my control I will not be able to attend this class at the time prescribed on your letter due to the fact that my working hours are from 7:00 until 4:30.
* * *
Dear Sir:
Our son is in the Navy, stationed in the Caribbean some place. Please let us know exactly what kind of drugs he is accused of taking. From a mother who will help if properly informed.
A worried mother,
Jane Doe
* * *
Dear Attorney General:
Holy greetings to you in Jesus name. I received a card from you and I don’t understand it, and my husband can’t read his. Most of the time all I buy is olive oil for healing oil after praying over it, it is anointed with God’s power and ain’t nothing like dope.68
In some cases, informing clients about technical matters may require a great deal of time and expense, for which clients (or lawyers with fixed or contingent fee agreements) may be reluctant to pay. In other contexts, clients 210may simply prefer that attorneys with greater expertise assume responsibility for making critical decisions.69
Power asymmetries in many attorney-client relationships also may raise problems in determining if a client’s consent is truly autonomous. Even when lawyers attempt to remain neutral and objective, the way that they describe options and their likely consequences can preempt certain choices. Moreover, attorneys are trained to advocate positions and to persuade decision-makers to reach what the attorney believes are the right results. In many instances, attorneys may not even realize the extent to which they are pressuring or manipulating clients.70
6.Defense lawyer Abbe Smith notes that one of the most difficult but crucial jobs of a defense attorney arises when any experienced criminal defense lawyer would advise a plea but the defendant insists on trial. Smith believes that the role of counsel in these cases is to “convince a client to hang on to as much liberty as he or she can—not to take an ill-considered, irrational, or immature ‘no’ for an answer. . . . [Lawyers] have to be willing to plead, argue, cajole . . . yell [and] badger . . . [and] to bring in family. . . .”71
How far should badgering extend? Does it differ for privately-retained and court-appointed lawyers? How will defendants feel if they are railroaded into accepting pleas by defense counsel whom they have not chosen? Does it matter, if the result is to spare the defendant an extended sentence?
a)You represent an elderly client of limited means. He has been pressured by his former wife into signing a promissory note secured by his house in order to help his stepson start a new business. Fraudulent representations were made about the state of the company’s finances, and it has now gone bankrupt. The note has come due, and the client’s house will be subject to foreclosure unless he contests the transaction. He is unwilling to do so, both because it would trigger an acrimonious dispute and because everyone would learn that he had allowed himself to be cheated. He is, however, concerned about losing his home. Are you free to disregard your client’s short-term instruction not to file suit in favor of the long-term value of keeping his house?72
b)Your client has been offered a guilty plea on a minor drug charge that is unlikely to result in jail time. He is willing to plead guilty but his reason is that he saw devils in the courtroom when he was arraigned and 211is convinced that they will torture him if he goes to trial. You have severe doubts about your client’s competency, but you are afraid that if you raise your concerns with the court, your client will be subject to confinement at the state mental hospital for sixty days while an evaluation is completed. If found incompetent, he may be committed to a state mental hospital for an indefinite period. How should you proceed?73
c)Your client, a wealthy newspaper owner, is suffering from a terminal illness and is deeply depressed. He suddenly tells you that he wishes to redraft his will to cut out his wife of many years. He does not wish to discuss the reasons, apart from expressing general bitterness concerning their current relationship. Would it be permissible, or appropriate, to question this decision and delay carrying out your client’s instructions to provide time for further consideration? Suppose that you have been a friend and advisor to the wife in the past, although you have not had recent contact. What if your client dies without changing his mind before the new will is executed?74
d)Your client was involved in a car accident in which one of his close college friends was killed. He is charged with driving while intoxicated and vehicular homicide, but some of the circumstances are unclear. You believe that if he contests the charges, the prosecutor might ultimately accept a plea to reckless operation of a vehicle. The client, however, insists that he should plead guilty to homicide, and in an emotional scene, tells you that he cannot live with himself unless he acknowledges his guilt. You do not think he has a realistic understanding of prison conditions or the effect of such a conviction on his long-term prospects. Should you enlist the client’s family and friends in trying to convince him not to plead guilty unless the prosecutor offers to reduce the charges? Would it be preferable simply to provide your best assessment of the likely consequences?
Conversely, suppose that the facts are strongly against your client but he wants to reject the reckless operation plea and go to trial. You advise your client that he would be extremely foolish not to take the plea because if, as is likely, he is convicted on the greater charge of homicide, the judge would doubtless impose the maximum penalty. Your client still wants to take his chances. If neither you nor his family can change his mind, can you threaten to withdraw?75
e)The Long Black Veil case:
The judge said, “Son, what is your alibi?
212If you were somewhere else then you won’t have to die.”
I spoke not a word, though it meant my life.
For I had been in the arms of my best friend’s wife.76
If your client is unwilling to invoke the alibi defense, are there considerations that might cause you to override his preferences? He is prepared to die rather than expose the wife’s infidelity and his own betrayal of his best friend. As his lawyer, do you argue with him about his priorities?
f)You are representing a refugee from a brutal military dictatorship in a deportation hearing. The immigration authorities found his story of political persecution not credible and denied his application for political asylum. In order to document his story, you wish to contact his former colleague, who remains in their native country. Your client, however, resists that strategy for fear of jeopardizing her safety. You have contacts with human rights groups who believe they can get a message through to her safely and that they can smuggle out the documents necessary to prove your client’s story. Your client, however, is unwilling to take the risk, even though obtaining these documents offers his only chance of victory in the asylum hearing. May you go against your client’s wishes and contact the former colleague if you genuinely believe it will save his life?
g)You are a tax and estate planning attorney. Two men in their forties approach you to alter their wills. They explain that they are long-time partners, and that one of them is terminally ill. The other is in excellent health.
They want their wills altered quickly, they explain, because they have decided to end their lives in a suicide pact. They ask you to write new wills removing each other as beneficiaries and substituting third parties. You tell them that you need time to examine the law and to determine whether you are willing to take the case. In the interim, you strongly urge them to discuss their decision with a mental health professional.
Your research reveals that suicide is no longer a crime in your state. However, directly assisting another’s suicide is a criminal offense, and you are concerned that the partners will be engaging in mutual assisted suicide or even mutual murder. In that case, drawing up their wills may run afoul of Rule 1.2(d): “A lawyer shall not . . . assist a client in conduct that the lawyer knows is criminal. . . .” Furthermore, your state’s version of Rule 1.6 requires you to reveal confidential information in order to prevent a criminal act that you reasonably believe will result in death or substantial bodily injury. A colleague whom you ask for advice suggests that these legal concerns are not what really bothers you about the case. In your friend’s opinion, your worries about the law and the ethics rules 213really show your more fundamental ambivalence about whether to take steps to prevent the double suicide.77 You do not disagree.
Should you draw up the new wills? What information from the partners might assist your decision? Would it be proper for you to speak to either of them separately? What, if any, advice would you offer these clients?
What role should, or would, your own moral and religious convictions about suicide, assisted suicide, and euthanasia play in your deliberations? Would you distinguish between the requests of the healthy and the ill partner? Why or why not?
References: Rules 1.2(a), 1.4, 1.6, 1.14, 2.1.
4.Can a Lawyer Contract into More Control?
While Rule 1.2(a) makes clear that a “lawyer shall abide by a client’s decision whether to settle a matter,” Rule 1.2(c) states that a lawyer “may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comment 6 elaborates that the “scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client.” Does this mean that a lawyer could enter a retainer agreement with a client in which the lawyer agrees to provide litigation services only on the condition that the client agree not to settle without the lawyer’s consent? In other words, could a lawyer contract around the basic allocation of control rules specified in Rule 1.2(a)?
According to Professor Susan Carle, the answer is an unequivocal no:
When courts examine retainer agreements that purport to give an attorney control over settlement decisions in a particular case, they typically declare such agreements contrary to the applicable state rules of professional responsibility, and/or contrary to public policy, and thus void. Even more to the point, courts sometimes find lawyers who have improperly contracted with clients in this way to have violated the applicable state rules of professional responsibility. . . . Nor are the disciplinary consequences insignificant. Courts that discover that lawyers have used retainer provisions in which clients purportedly assign the right to make settlement decisions to their lawyers may suspend from practice the lawyer involved.78
214Moreover, Carle concludes that a lawyer may not contract for the right to withdraw from representation in the event a client rejects the lawyer’s advice to settle.
[A] provision in a retainer agreement purporting to bind a client to agree to a lawyer’s permissive withdrawal from her case if she and her lawyer disagree about settlement is not likely to meet with the court’s sympathy. The lawyer and client cannot contract out of the lawyer’s duty to request permission from the tribunal before withdrawing on non-mandatory grounds. The lawyer may request permission to withdraw from a case where a client refuses to accept settlement advice, provided the lawyer can do so without material adverse effect on the client.79
Does this seem like the right resolution of the settlement problem? Consider the case of a public interest lawyer who works for a nonprofit organization dedicated to fighting for equal pay for women. The lawyer has spent several years investigating a large corporate employer with a poor record of hiring and promoting women, and has collected evidence from current and former female employees of the company’s practice of paying women less than men for the same work. Because the company is considered an industry leader, the lawyer believes that a successful suit will have a broader impact by sending a message to other firms to promote pay equity. However, the lawyer anticipates that the company will fight the suit tooth and nail, and that it will cost an enormous amount of resources to litigate successfully. The lawyer’s organization is nonetheless willing to support the suit on the condition that it does not simply seek back pay for female workers, but also pursues injunctive relief that the lawyer hopes will result in a public recognition of liability by the company and an agreement to make proactive changes to ensure pay equity going forward.
Based on her research into similar cases, the lawyer understands that it is common for corporate defendants to propose confidential settlements in which they make undisclosed damage payments for backpay but refuse to admit liability or agree to systemic changes going forward. Plaintiffs are often tempted to take the money offered in these settlements, despite their sympathy to the broader pay equity cause or prior assurances that they want the company to provide injunctive relief. Given the risk that the clients might give up on what (from the lawyer’s perspective) is the most important part of the case (and the only reason her organization has agreed to it in the first place), why shouldn’t the lawyer be permitted to contract in advance to prevent a confidential monetary settlement?
215As Problem 2 above highlights, a key question for lawyers in making decisions in the clients’ best interest is whether there is reason to distrust client decisionmaking capacity. If a client is comatose or otherwise wholly incompetent, the lawyer has only two alternatives: to “play God” or to take instructions from an alternative decision-maker, such as a guardian.
However, more difficult ethical problems arise with partially competent clients. This part examines the challenges of legal representation in this context, focusing on two types of scenarios. The first involves the representation of clients with diminished capacity, specifically, adults who are mentally disabled or some juveniles. The second involves the representation of sophisticated clients. As the above discussion indicates, even highly sophisticated decision-makers can sometimes become irrational and fail to realize that their judgment is faulty. Clients can be “too smart for their own good,” or too indecisive about what their own good is.
A threshold question is what “competence” means. Experts generally agree that mental illness should not be equated with incompetence; many individuals suffering impairment in some areas retain decisionmaking capacity in others.80 Nor is eccentricity the same as incompetence, and in many situations, there is no value-neutral standpoint from which to assess the rationality of another’s convictions. For example, a person may decide to give all his money to his church. If the church is part of a mainstream religion, observers may call the person a saint; if the church is a “cult,” observers may assume that the person has been brainwashed and take legal steps to freeze the person’s assets. Yet almost every mainstream religion began as a cult, scorned by popular opinion. An outsider’s judgment that a “cultist” is incompetent may reveal more about the outsider’s biases than about the believer’s incapacity.
A further difficulty is that evaluations of competence may be influenced by ulterior motives. A typical situation arises when an elderly individual begins making extravagant expenditures, charitable contributions, or gifts to companions that will shrink the estate of potential heirs. Family members may respond by threatening or initiating involuntary guardianship proceedings, or pressuring the individual’s lawyer to intervene.81 Alternatively, disappointed heirs who learn that a deceased relative has made substantial charitable bequests may attack the testator’s competence and ask that the will be set aside—216a form of after-the-fact “paternalism” that is particularly problematic because the other heirs are scarcely disinterested, and the deceased is no longer around to defend his competency.82 Dennis Thompson warns of the circular reasoning that bases judgments of incompetency solely on a person’s “eccentric” choices, and then overrules those choices because the person is incompetent. An adequate justification of paternalism, he advises, requires us to “identify some impairment that can be described independently of the end or good an individual chooses.”83
Assessing Competence and Incompetence
To avoid such circular analysis, some commentators propose focusing on the process rather than the substance of a decision. For example, do individuals understand the consequences of a choice, the alternatives available, and the likelihood that the particular choice will advance their objectives? Can they give reasons for their decision? However, as other experts note, it is often impossible to evaluate process without some background assumptions about substance. We evaluate an individual’s understanding and reasoning by reference to what we consider rational goals.84 Moreover, as a practical matter, most of us will be willing to defer to people’s choices that appear consistent with their objectives, even if their reasoning process seems questionable. A harder question arises when clients’ short-term preferences seem clearly inconsistent with their long-term well-being.
Although the difficulties in objectively assessing competence cannot be entirely escaped, they can be addressed by examining factors such as: the ability to articulate the reasons behind a decision; the variability in the decision-maker’s mental state; the appreciation of the consequences of a particular decision; the substantive fairness of the outcome; and its consistency with the decision-maker’s long-term values.85
Alternatively, David Luban proposes adopting a test of competency articulated in Matter of Will of White, a nineteenth-century estates case:
[I]f there are facts, however insufficient they may in reality be, from which a prejudiced or a narrow . . . mind might derive a particular idea or belief, it cannot be said that the mind is diseased in that respect.86
217Luban comments: “All that we can reasonably require is that the person be connecting beliefs to real facts by some recognizable inferential process. . . .”87 Furthermore, when the individual’s potentially harmful choice arises from membership in some recognizable group, such as a religious cult or political movement, Luban believes that viewing the individual as incompetent would be inconsistent with associational freedom.88 This approach would rule out a great deal of paternalistic intervention.
There are at least three ways in which a client’s “competence” may matter in a legal proceeding and different standards may apply in each instance.
First, in a criminal proceeding, a defendant may be judged incompetent to stand trial after a psychiatric evaluation because he “is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(d). In such case, a client may be committed to a mental health institution.
Second, a criminal defendant may be deemed competent to stand trial but incompetent to represent himself. This issue arose in Indiana v. Edwards, 554 U.S. 164 (2008). There, after lengthy competency proceedings, the state trial judge found that the defendant suffered from schizophrenia, that he was competent to stand trial for attempted murder, but that he was not competent to represent himself. At a trial with court-appointed counsel, the defendant was convicted and sentenced to thirty years. The Indiana Supreme Court reversed on the ground that the standard for self-representation was the same as the standard for competency to stand trial. The Supreme Court reversed and remanded, holding that the standards should be different. Competency to stand trial required only that the individual have a rational and factual understanding of the proceedings, and an ability to consult with counsel with a reasonable degree of rational understanding.89 In the Edwards Court’s view, “[i]n certain instances an individual may well be able to satisfy Dusky’s mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.”90
Finally, the third way that competence matters is when a lawyer is called upon to make strategic decisions on a client’s behalf that may conflict with the views of the client, who may be competent to stand trial 218(or pursue another course of legal action) but nonetheless suffer from a mental impairment. What is the standard for lawyer conduct in such a context?
2.Client Competency: The Ethical Framework
Prior to the adoption of the Model Rules, the bar’s ethical codes provided no explicit guidance for such representation. Now, Rule 1.14 provides:
(a)When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b)When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.
(c)Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Comment 6 provides as follows:
[6]In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
What constitutes a “considered decision” or an appropriate “protective action” is open to dispute. Courts have divided over how far lawyers should depart from the typical advocacy role in representing clients under a disability. Some judges have applauded attorneys for acting in clients’ “best interest”; other judges have criticized attorneys for making judgments about medical treatment that are beyond their 219expertise and that usurp the judicial role.91 The trend, both among courts and experts in the field, is toward deference to clients’ expressed preferences. The fact that a client disagrees with mental health experts concerning his condition does not always mean that he is incompetent to make his own decisions and to direct his lawyer accordingly. For obvious reasons, psychiatric professionals are often highly risk averse when any possibility of harm to the patient or to third parties is at stake; individuals whose liberty is at issue or who suffer significant side effects from medication, may have a different assessment of their own best interests.
When should attorneys follow a client’s wishes that are contrary to recommendations of mental health experts? There is no easy answer, and every course of action a lawyer might take runs risks. For example, in the context of civil commitments (a legal process through which an individual with symptoms of severe mental illness is court-ordered into inpatient psychiatric treatment), to agree with experts that the client’s institutionalization is beneficial may “fail to take into account . . . the conditions prevalent in many of the public psychiatric facilities to which patients are regularly committed and the severity of the side effects often caused by the administration of psychotropic medication.”92 If the lawyers who are appointed to represent individuals at civil commitment hearings are encouraged to follow doctors’ rather than clients’ wishes, they may end up failing to provide the kind of check on the system that their presence was meant to secure.93 Given the loss of liberty and stigma associated with involuntary commitment, individuals deserve an advocate who will speak for their interest as they perceive it.
On the other side of the issue, one commentator cautions:
The patient-hospital relationship is not a simple adversarial one. It is not approached as such by the institution. To approach it that way from the patient’s side would, if nothing else, be incongruous. All the elements that argue for the broader fact-finder-counselor role are present, and pursuit of the objectives of improving the decision-making process, getting the full facts, promoting serious reflection on all options and their consequences, and of serving interests less narrow than those announced in mental confusion by the patient or perceived at first blush by the lawyer would appear to be the essence of good lawyering in the mental institution. To extend without thought the dictates or folklore of “traditional litigation” to the mental hospital situation is unlikely to benefit anyone other than the 220lawyer who measures success in terms of “beating” imagined adversaries. . . .94
Related problems figure in the guardianship system. Though Rule 1.14(b) endorses the appointment of a guardian ad litem, conservator, or guardian, such appointments are not always appropriate. Elderly individuals may be competent to handle certain decisions but not others. These individuals may justifiably fear that guardianship would mean the loss of control over crucial aspects of their lives. Moreover, the frequently inadequate oversight of guardians, and the undue costs of providing them for individuals with little property or only temporary disabilities, may make their appointment less desirable than relying on family attorneys to function as “de facto” guardians.95
One final difficulty is that the choice of which role to adopt is generally up to lawyers themselves. Client oversight, the normal check on attorney conduct, is insufficient because the very point at issue is how much direction to take from the client. The problem is exacerbated by many clients’ difficulties in communicating with their attorneys or in replacing them if the relationship is unsatisfactory.
3.Clients with Diminished Capacity
How should lawyers deal with clients who are judged competent to stand trial but who have some mental health difficulties that seem to impair their decisionmaking ability?
This question surfaced in the celebrated case involving the “Unabomber,” which is excerpted below. Ninth Circuit Judge Stephen Reinhardt, in his dissenting opinion, summarizes the background facts of the case:
By the time of his arrest in a remote Montana cabin on April 3, 1996, Ted Kaczynski had become one of the most notorious and wanted criminals in our nation’s history. For nearly two decades, beginning in 1978, the “Unabomber”—so designated by the FBI when his primary targets appeared to be universities and airlines—had carried out a bizarre ideological campaign of mail-bomb terror aimed at the “industrial-technological system” and its principal adherents: computer scientists, geneticists, behavioral psychologists, and public-relations executives. Three 221men—Hugh Scrutton, Gilbert Murray, and Thomas Mosser—were killed by Kaczynski’s devices, and many other people were injured, some severely.
In 1995, Kaczynski made what has been aptly described as “the most extraordinary manuscript submission in the history of publishing.” Kaczynski proposed to halt all his killings on the condition that major American newspapers agree to publish his manifesto, “Industrial Society and Its Future.” The New York Times and Washington Post accepted the offer, and that most unusual document, with its “dream . . . of a green and pleasant land liberated from the curse of technological proliferation,” revealed to the world the utopian vision that had inspired Kaczynski’s cruel and inhumane acts. Among the readers of the manifesto was David Kaczynski, who came to suspect that its author was his brother Ted, a former mathematics professor at Berkeley who had isolated himself from society some quarter-century before. David very reluctantly resolved to inform the FBI of his suspicions, although he sought assurances that the government would not seek the death penalty and expressed his strong view that his brother was mentally ill. On the basis of information provided by David, the FBI arrested Kaczynski and, despite David’s anguished opposition, the government gave notice of its intent to seek the death penalty.96
United States Court of Appeals for the Ninth Circuit
239 F.3d 1108 (2001).
n Rymer, Circuit Judge:
Theodore John Kaczynski, a federal prisoner, appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate his conviction. In that motion, Kaczynski alleges that his guilty plea to indictments returned against him as the “Unabomber” in the Eastern District of California and in the District of New Jersey, in exchange for the United States renouncing its intention to seek the death penalty, was involuntary because his counsel insisted on presenting evidence of his mental condition, contrary to his wishes, and the court denied his Faretta request to represent himself. Having found that the Faretta request was untimely and not in good faith, that counsel could control the presentation of evidence, and that the plea was voluntary, the district court denied the § 2255 motion without calling for a response or holding a hearing. . . .
222I
The facts underlying Kaczynski’s arrest (April 3, 1996) and indictment for mailing or placing sixteen bombs that killed three people, and injured nine others, are well known and we do not repeat them here. Rather, we summarize the pre-trial proceedings that bear on the voluntariness of Kaczynski’s plea.
[Kaczynski’s capital case was assigned to Judge Garland Burrell, and Kaczynski was represented by Judy Clarke, Quin Denvir, and Gary Sowards, all highly experienced federal public defenders. They filed a notice under F. R. Crim. P. 12.2(b) that they intended to introduce psychiatric evidence for an impaired mental state defense of Kaczynski. Kaczynski himself made it clear that he was extremely reluctant to agree to this notice, and that he strongly opposed any form of mental state defense. Instead, he favored a combination of a necessity defense (arguing that his bombings were self-defense against technological society) and a motion to suppress all the evidence seized from his Montana cabin by the FBI. After jury selection, Kaczynski learned that his defenders intended to go ahead with the mental defense. In mid-December, Kaczynski agreed that evidence of his mental state could be introduced at the penalty stage of the trial but not at the guilt stage. Subsequently, however, Kaczynski announced that he wished to replace his counsel with Tony Serra, another lawyer with whom he had been in contact, because Serra would not use a mental status defense, and would defend the case along Kaczynski’s preferred lines. When the judge denied that motion because it would delay trial, Kaczynski asked to represent himself. The judge denied this motion as well, on the ground that it was untimely and made in a bad-faith attempt to delay the trial. Kaczynski attempted suicide, and the trial was postponed until he could be examined for competence. The court determined that he was competent to stand trial, and that despite his desire to represent himself, he would be represented by Clarke and Denvir, who would present a mental state defense. The court noted that permitting Kaczynski to represent himself would mean foregoing “the only defense that is likely to prevent his conviction and execution.” Kaczynski immediately agreed to plead guilty in return for no death sentence. He was sentenced to life without parole. He appealed.]
On the merits, Kaczynski contends that his plea was involuntary because he was improperly denied his Faretta right, or because he had a constitutional right to prevent his counsel from presenting mental state evidence. Even if neither deprivation suffices, still the plea was involuntary in his view because it was induced by the threat of a mental state defense that Kaczynski would have found unendurable.
It goes without saying that a plea must be voluntary to be constitutional. . . . The general principles are well settled. . . . In sum, “a guilty plea is void if it was ‘induced by promises or threats which deprive it of the character of a voluntary act.’ ”
223A
[The court finds, on the basis of Kaczynski’s written and oral statements, his responses to questions at the time his guilty plea was entered, and his demeanor, that the plea was entered voluntarily.]
This would normally end the enquiry, for being forced to choose between unpleasant alternatives is not unconstitutional. However, since the district court ruled on Kaczynski’s § 2255 motion, we held in United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000), that the erroneous denial of a Faretta request renders a guilty plea involuntary. We reasoned that wrongly denying a defendant’s request to represent himself forces him “to choose between pleading guilty and submitting to a trial the very structure of which would be unconstitutional.” Because this deprives the defendant “of the choice between the only two constitutional alternatives—a plea and a fair trial,” we concluded that a district court’s improper Faretta ruling “imposed unreasonable constraints” on the defendant’s decision-making, thus making a guilty plea involuntary. Therefore, we must consider whether Kaczynski’s plea was rendered involuntary on account of a wrongful refusal to grant his request for self-representation.
B
Following Faretta, our court has developed the rule that “[a] criminal defendant’s assertion of his right to self-representation must be timely and not for purposes of delay; it must also be unequivocal, as well as voluntary and intelligent.”
Kaczynski argues that there must be an affirmative showing that he intended to delay the trial by asking to represent himself, and that none was made here. Rather, he asserts, the facts show that his purpose was to avoid the mental state defense. Kaczynski also contends that his Faretta request was timely, which we assume (without deciding) that it was for purposes of appeal. . . .
The court found that Kaczynski “clearly and unambiguously permitted his lawyers to adduce mental status evidence at trial, and his complaints to the contrary, asserted on the day trial was set to commence, evidence his attempt to disrupt the trial process.” Further, the court found that although Kaczynski contended he made his January 8 request to represent himself only because he could not endure his attorneys’ strategy of presenting mental status evidence in his defense, the record belied this contention because Kaczynski had authorized its use. The court also found that Kaczynski was well aware before January 8 that evidence of his mental status would be adduced at trial. In addition to the December 22 accord, Kaczynski was present during all but one day of the seventeen days of voir dire, during which the court observed that he conferred amicably with his attorneys while they openly and obviously selected jurors appearing receptive to mental health evidence about him. Finally, the court found that Kaczynski could not have immediately 224assumed his own defense without considerable delay, given the large amount of technical evidence and more than 1300 exhibits that the government intended to offer. . . .
Kaczynski contends that he could not have been influenced by delay, given that he was incarcerated for the long haul in any event. However, the district court found that he was simultaneously pursuing strategies to delay the trial, to project a desired image of himself, and to improve his settlement prospects with the government. Kaczynski also argues that it should not matter whether he agreed to let evidence of his mental state be presented in the penalty phase, because the trial might never have gotten that far. We disagree, for Kaczynski never did—and does not now suggest—that he is actually innocent or that there was any realistic chance that the jury would not unanimously find him guilty beyond a reasonable doubt. . . .
Affirmed.
n Reinhardt, Circuit Judge, dissenting:
I disagree strongly with the majority’s decision and regretfully must dissent.
This case involves the right of a seriously disturbed individual to insist upon representing himself at trial, even when the end result is likely to be his execution. It presents a direct clash between the right of self-representation and the state’s obligation to provide a fair trial to criminal defendants, especially capital defendants. It raises the question whether we should execute emotionally disturbed people whose crimes may be the product of mental disease or defect and, if so, whether they should be allowed to forego defenses or appeals that might prevent their execution. In fact, it raises, albeit indirectly, the question whether anyone should be permitted to waive his right to contest his execution by the state if that execution might be unlawful.
The case of Ted Kaczynski not only brings together a host of legal issues basic to our system of justice, it also presents a compelling individual problem: what should be the fate of a man, undoubtedly learned and brilliant, who determines, on the basis of a pattern of reasoning that can only be described as perverse, that in order to save society he must commit a series of horrendous crimes? What is the proper response of the legal system when such an individual demands that he be allowed to offer those perverse theories to a jury as his only defense in a capital case—a defense that obviously has no legal merit and certainly has no chance of success? What should the response be when he also insists on serving as his own lawyer, not for the purpose of pursuing a proper legal defense, but in order to ensure that no evidence will be presented that exposes the nature and extent of his mental problems? The district judge faced these questions and, understandably, blinked. He quite clearly did so out of compassionate and humanitarian concerns. Nevertheless, in denying Kaczynski’s request to represent himself, the 225district court unquestionably failed to follow the law. Notwithstanding the majority’s arguments in defense of the district judge’s actions, they simply cannot be supported on the ground he offered, or on any other ground available under the law as it now stands.
Whether Theodore Kaczynski suffers from severe mental illness, and which of the various psychiatric diagnoses that have been put forth is the most accurate, are questions that we cannot answer here. However, it is not now, nor has it ever been, disputed that under the governing legal standards, he was competent to waive his right to the assistance of counsel. Therefore, whatever we may think about the wisdom of his choice, or of the doctrine that affords a defendant like Kaczynski the right to make that choice, he was entitled, under the law as enunciated by the Supreme Court, to represent himself at trial. A review of the transcript makes startlingly clear that, under the law that controls our decision, the denial of Kaczynski’s request violated his Sixth Amendment rights. There is simply no basis for the district court’s assertion that the request was made in bad faith or for purposes of delay. Because, as the majority acknowledges, the erroneous denial of a self-representation request renders a subsequent guilty plea involuntary as a matter of law, I must respectfully dissent from the majority’s holding that Kaczynski’s plea was voluntary.4
I
. . . Following Kaczynski’s indictment, Federal Defenders Quin Denvir and Judy Clarke were appointed to represent him. Attorney Gary Sowards joined the defense team some time later. All three are superb attorneys, and Kaczynski could not have had more able legal representatives. From the outset, however, Kaczynski made clear that a defense based on mental illness would be unacceptable to him, and his bitter opposition to the only defense that his lawyers believed might save his life created acute tension between counsel and client. That tension persisted, and periodically erupted, throughout the many months leading up to Kaczynski’s guilty plea, and the dispute was not definitively resolved until Judge Burrell ruled on January 7, 1998, that Kaczynski’s attorneys could present mental-health evidence even over his vehement objection. It was that ruling, Kaczynski maintains—and the record indisputably reflects—that compelled him to request self-representation the very next day as the only means of preventing his portrayal as a “grotesque and repellent lunatic.” In doing so, Kaczynski was merely exercising the right that Judge Burrell had recognized he possessed the day before, immediately after he issued his controversial ruling that 226counsel, not client, would control the presentation of mental-health evidence.8
Whether Kaczynski’s self-representation request was made in good faith, as Judge Burrell repeatedly stated on January 8, or whether it was a “deliberate attempt to manipulate the trial process for the purpose of causing delay,” as Judge Burrell subsequently held when explaining his reason for denying the request, is the issue before us. Although the answer is absolutely clear from the record, it is helpful to set forth a number of colloquies that demonstrate that everyone involved—including counsel for both sides and the district judge—was fully aware that Kaczynski’s request was made in good faith and not for purposes of delay. The record reveals that Kaczynski’s aversion to a mental-health defense was, indisputably, heartfelt, and that no one—least of all Judge Burrell—ever questioned Kaczynski’s sincerity prior to the time the judge commenced formulating his January 22 ruling.
II
[Judge Reinhardt summarizes various evidence, including dozens of notes that Kaczynski wrote to his attorney, in which he expressed his unwillingness to present a mental-health defense at trial. For example, in 1997 he wrote: “I categorically refuse to use a mental-status defense.” He submitted to psychiatric evaluations only after receiving what he described as “false promises and intense pressure” from his attorneys, who understood that his primary concern was, as he wrote them in June 1997, “to get reliable psychological data about myself before the public in order to counteract all this silly stuff about me that the media have been pushing.”]
When, on November 25, 1997, Kaczynski learned that defense experts had diagnosed him as suffering from paranoid schizophrenia, and that the results of those examinations had been released to the government and to the public, he felt “shock and dismay.” In the courtroom on that day, Kaczynski wrote to Denvir and Clarke:
Did Gary [Sowards] give that info to the prosecutors with your knowledge and consent? If you all assume responsibility for revealing what is being revealed now, then this is the end between us. I will not work with you guys any more, because I can’t trust you. . . .
This case is developing in a direction that I certainly did not expect. I was lead [sic] to believe that this was not really a “mental health” kind of defense, but that you would try to show that my actions were a kind of “self defense.” Gary [Sowards] gave me the impression that we would use only Dr. Kriegler, and would use her only to show I would not “do it again.”
227In the weeks that followed, Kaczynski also wrote three separate letters to Judge Burrell in which he explained his conflict with his attorneys and sought replacement of counsel. However, Denvir and Clarke prevailed upon him to delay bringing the conflict to the attention of the judge while they were engaged in negotiations with the Justice Department aimed at allowing him to plead guilty conditionally while preserving his suppression issues for appeal.11 When those negotiations failed, Denvir and Clarke agreed to deliver Kaczynski’s letters to Judge Burrell, and they did so on December 18.
The letters reveal the depth of the rift that had developed between Kaczynski and his attorneys regarding the issue of mental-health evidence. The first letter, dated December 1, 1997 begins: “Last Tuesday, November 25, I unexpectedly learned for the first time in this courtroom that my attorneys had deceived me.” Kaczynski explained that he had been assured by his attorneys that the results of psychiatric examinations that he reluctantly agreed to undergo—and even the fact that he had been examined at all—would be protected by attorney-client privilege and would not be disclosed absent his approval. Moreover, he had been “led to believe that [he] would not be portrayed as mentally ill without [his] consent. . . .”
In a letter dated December 18, Kaczynski offered his reasons for objecting to a defense based on mental-health evidence:
I do not believe that science has any business probing the workings of the human mind, and . . . my personal ideology and that of the mental-health professions are mutually antagonistic. . . . It is humiliating to have one’s mind probed by a person whose ideology and values are alien to one’s own. . . . [My lawyers] calculatedly deceived me in order to get me to reveal my private thoughts, and then without warning they made accessible to the public the cold and heartless assessments of their experts. . . . To me this was a stunning blow . . . [and] the worst experience I ever underwent in my life. . . . I would rather die, or suffer prolonged physical torture, than have the 12.2b defense imposed on me in this way by my present attorneys.
Previous consent to such a defense was, Kaczynski contended, “meaningless because my attorneys misled me as to what that defense involved.” . . .
On the morning of January 5, Kaczynski informed Judge Burrell of his continuing conflict with counsel, and the judge appointed attorney Kevin Clymo as “conflicts counsel” to represent Kaczynski’s interests. Proceedings were postponed until January 7. On that day, Judge Burrell ruled that Kaczynski’s counsel could present mental-state testimony 228even if Kaczynski objected. Judge Burrell then offered Kaczynski the option of self-representation, warning: “I don’t advise it, but if you want to, I’ve got to give you certain rights.” At the time of the court’s offer, Kaczynski declined to accept it, explaining that he was “too tired . . . [to] take on such a difficult task,” and that he did not feel “up to taking that challenge at the moment.” By then, according to his section 2255 motion, “Kaczynski was already contemplating suicide as the most probable way out of this cul-de-sac.” Later that same day, the court was informed that Tony Serra would, after all, be willing to represent Kaczynski. Kaczynski promptly requested a change of counsel, but Judge Burrell denied the request on the ground that substituting counsel would require a significant delay before trial could commence.
On January 8, Kaczynski decided to accept the court’s offer of the previous day and informed the court that he wished to represent himself.15 Kaczynski’s counsel conveyed his request to the court with great reluctance:
Your Honor, if I may address the Court, Mr. Kaczynski had a request that we alert the Court to, on his behalf—it is his request that he be permitted to proceed in this case as his own counsel. This is a very difficult position for him. He believes that he has no choice but to go forward as his own lawyer. It is a very heartfelt reaction, I believe, to the presentation of a mental illness defense, a situation in which he simply cannot endure.
Kaczynski’s attorneys made clear that he was not seeking any delay in proceedings and that he was prepared to proceed pro se immediately. On that day, as before, Judge Burrell did not intimate that he perceived any bad-faith motive on Kaczynski’s part. To the contrary, he made numerous comments demonstrating his belief that Kaczynski sought self-representation solely because of the conflict over control of the mental-health defense. . . .
The court repeatedly asserted that the key to the self-representation issue was whether Kaczynski was “competent,” and did not even hint at the possibility of a bad-faith motive. Ultimately, Kaczynski’s own attorneys called their client’s competency into question, expressing the view that his efforts to waive what appeared to be his only meritorious defense attested to the need for a competency evaluation. At that point, all counsel (including the court-appointed conflicts counsel) and Judge Burrell agreed that Kaczynski should undergo a psychiatric evaluation to determine his competency to exercise his right to self-representation, and the next day the judge issued an order for the necessary medical examinations.
The competency evaluation would, of course, have been altogether unnecessary had Judge Burrell believed on January 8 that Kaczynski’s 229request to represent himself was made in bad faith. The judge could simply have denied the request on that ground. Nevertheless, two weeks later, after Kaczynski had been determined to be competent by a government psychiatrist, Judge Burrell denied the self-representation request, characterizing it—in a manner that directly contradicted the numerous statements he had made at the prior proceedings—as a “deliberate attempt to manipulate the trial process for the purpose of causing delay.”
III
It is impossible to read the transcripts of the proceedings without being struck by Judge Burrell’s exceptional patience, sound judgment, and sincere commitment to protecting Kaczynski’s right to a fair trial—and his life. Judge Burrell’s commendable concern about preventing Kaczynski from pursuing a strategy that would almost certainly result in his execution is reflected most dramatically in statements made in connection with the judge’s January 22, 1998 oral ruling denying Kaczynski’s self-representation request. The judge observed that by abandoning a mental-health defense and proceeding as his own counsel, Kaczynski would be foregoing “the only defense that is likely to prevent his conviction and execution. . . . That ill-advised objective is counterproductive to the justice sought to be served through the adversary judicial system, which is designed to allow a jury to determine the merits of the defense he seeks to abandon.” Judge Burrell was unwilling to permit Kaczynski to use the criminal justice system “as an instrument of self-destruction,” explaining that “a contrary ruling risks impugning the integrity of our criminal justice system, since it would simply serve as a suicide forum for a criminal defendant.” He contended, in effect, that society had an interest in preventing capital defendants from using the instrument of the state to commit suicide. As legal support for his reasoning, Judge Burrell cited Chief Justice Burger’s dissenting opinion in Faretta.
Nevertheless, Judge Burrell did not base his decision denying Kaczynski’s Faretta rights on his views of the role of the criminal justice system in capital cases; he was not free to do so under controlling law. . . . Because Kaczynski’s psychiatric evaluation resulted in a declaration that he was competent, the only available basis for denying his request was to find that it was not made in good faith—but rather for the purpose of delay—even though the record squarely refuted that conclusion.
There can be no doubt that Judge Burrell’s admirable desire to prevent an uncounseled, and seriously disturbed, defendant from confronting, on his own, the “prosecutorial forces of organized society”—in this case, three experienced federal prosecutors aggressively seeking that defendant’s execution—lay at the heart of his denial of Kaczynski’s request for self-representation. A fair reading of the record provides no support for the finding that Kaczynski’s purpose was delay. . . . Yet it is easy to appreciate why, as one commentator has suggested, “the judicial 230system breathed a collective sigh of relief when the Unabomber pled guilty.” Indeed, all the players in this unfortunate drama—all except Kaczynski, that is—had reason to celebrate Kaczynski’s unconditional guilty plea. His attorneys had achieved their principal and worthy objective by preventing his execution. The government had been spared the awkwardness of pitting three experienced prosecutors against an untrained, and mentally unsound, defendant, and conducting an execution following a trial that lacked the fundamental elements of due process at best, and was farcical at worst. Judge Burrell, as noted, had narrowly avoided having to preside over such a debacle and to impose a death penalty he would have considered improper in the absence of a fair trial. It is no wonder that today’s majority is not eager to disturb so delicate a balance.
The problem with this “happy” solution, of course, is that it violates the core principle of Faretta v. California—that a defendant who objects to his counsel’s strategic choices has the option of going to trial alone. Personally, I believe that the right of self-representation should in some instances yield to the more fundamental constitutional guarantee of a fair trial. Here, the district court understood that giving effect to Faretta’s guarantee would likely result in a proceeding that was fundamentally unfair. However, Faretta does not permit the courts to take account of such considerations. Under the law as it now stands, there was no legitimate basis for denying Kaczynski the right to be his own lawyer in his capital murder trial.
IV
I do not suggest that the result the majority reaches is unfair or unjust. It is neither. I would prefer to be free to uphold the district judge’s denial of Kaczynski’s request on the basis of the societal interest in due process for all defendants, and particularly capital defendants. Unfortunately, I am not permitted by precedent to do so. Because I am bound by the law, I am also unable to vote to affirm on the basis the district court relied on: that Kaczynski’s request was made in bad faith. Thus, with much regret, I must conclude that Kaczynski’s plea of guilty was not voluntary and that he was entitled to withdraw it. Accordingly, I must respectfully dissent.
1.Lawyer Michael Mello assisted Kaczynski in preparing his pro se appeal to the Ninth Circuit; he also wrote a book about the Unabomber case.97 Mello describes Kaczynski as follows:
Like most psychopaths I’ve encountered in my travels as a capital defense lawyer, Kaczynski is wildly manipulative of people. He is the most selfish person I’ve ever known. He is a control freak. . . . 231He’s fixated as Nixon was with rehabilitating his public image, to correcting perceived “lies” others have said about him; he has even written a book to that end, tellingly and pretentiously (if inaccurately) titled Truth versus Lies. (The alleged “liars” are Kaczynski’s brother and mother, the media, etc., and guess who the “truth” teller is?). He desperately tries to control what people say or write about him.98
Does this describe a form of psychopathology, or merely a strongly-felt value placed by Kaczynski on his own image—different in degree, but not in kind, from the value that most individuals place on their own reputations? If his public image matters so much to Kaczynski, is the decision to use a mental status defense merely a tactical choice or is it a basic decision about the aims of the representation? How would you analyze this case in terms of Rule 1.2(a)?
2.From another perspective, Kaczynski may have been desperate to avoid having doubts cast on his sanity for fear that the public would discount the arguments in his manifesto—a work that in his eyes provided the justification for his campaign of terrorism. Should his lawyers have taken this into account?
3.Mello believes that most people desperately wish to view the Unabomber as insane because that is more comforting than believing that inexplicable crimes can be the product of a healthy mind. Yet as Mello notes:
If you think Kaczynski is a paranoid schizophrenic, I have a question for you: What are his delusions? . . . That the Industrial Revolution has been a mixed blessing? Hardly a delusion. That technology is chipping away at our freedoms and privacy? Hardly a delusion. That committing murder—and threatening to commit more—was the only way to force the New York Times and Washington Post into publishing, in full and unedited form, the 35,000-word Unabomber Manifesto? Hardly delusion. That the powers that be in our culture would define the Unabomber as a pathetic lunatic? Hardly a delusion. That a simple, self-sufficient life, in one of the most physically beautiful places in America, is preferable to the rat-race of academia? Hardly a delusion.99
One of the psychiatrists who examined Kaczynski explained that his paranoid delusion was “[h]is view of technology as the vehicle by which people are destroying themselves and the world.” In what sense is this a delusion? Wouldn’t many “normal” Americans agree? As noted above, another psychiatrist submitted a report asserting that Kaczynski’s unawareness of his psychiatric illness was itself a sign of illness.100 Is there any way for Kaczynski to avoid confirming this diagnosis? Is it legitimate for lawyers to submit such evidence against the client’s will?
2324.After Kaczynski’s trial, journalist William Finnegan published an article strongly condemning the Unabomber defense. According to Finnegan, Kaczynski was spared the death penalty “by a bizarre alliance of lawyers he was trying to fire, a family he had renounced, psychiatrists he did not trust or respect (and in some cases had never met), a federal judge who had drastically restricted his right to counsel and seemed to fear (with reason) the trial to come, a press convinced that he was a paranoid schizophrenic, and, finally, a legendary death-penalty opponent skilled at ‘client management’ (management, that is, of Kaczynski).”101 As Finnegan tells the story, the defense team worked closely with Kaczynski’s mother and brother to popularize the image of Kaczynski as a madman in order to pressure the prosecution into dropping its demand for the death penalty. The press was more than happy to oblige, and the “client management” consultant succeeded in keeping Kaczynski in the dark about the mental defense his lawyers planned.
As Finnegan relates the story, Kaczynski’s opposition to the mental defense did not represent a preference for death over dishonor, because Kaczynski did not see these as the only choices. He was focused on the possibility of a successful motion to suppress all the evidence seized from his cabin—essentially, the prosecution’s entire case. He wanted acquittal, not death. Finnegan comments: “If he did, in fact, believe that he had a chance of walking free from jail, he was, of course, severely deluded (not clinically deluded but blinded by unrealistic hopes, however conceived and encouraged). No judge in America would have set him free.”102
Does this mean that Kaczynski’s rejection of a psychiatric defense was based on faulty legal judgment rather than fundamental values? If so, does it justify the defenders’ taking matters out of his hands?
5.Did Clarke and Denvir act improperly by insisting on a mental impairment defense? By plea bargaining on terms that Kaczynski detested (even though he was mistaken to think that he could get better terms)? In a brief to the court, Clark and Denvir asserted:
The decisions whether and how to present a mental status defense in the guilt phase (other than in an insanity defense) and what witnesses to call in the penalty phase of capital trial fall squarely within the category of strategic decisions that ultimately must be decided by trial counsel. . . . It is unconscionable for the government to ask to the court—in a capital case—to order defense counsel to forgo the only defense that is likely to prevent the defendant’s conviction and execution.103
Do you agree? What would you have done?
6.Does Rule 1.14 help justify what Clarke and Denvir did? Recall that subsection (b) states that when “the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or 233other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action . . . .” Comment 5 notes that protective measures could include “consulting with family members” and should be guided by “the wishes and values of the client to the extent known, the client’s best interests and the goal[ ] of intruding into the client’s decisionmaking autonomy to the least extent feasible . . . .” Comment 8 states that, when taking protective action, “the lawyer is impliedly authorized to make the necessary disclosures [of the client’s diminished capacity], even when the client directs the lawyer to the contrary.” Assuming that Kaczynski had diminished capacity, would presenting the mental impairment defense during trial have been in his best interests? Was it a proper disclosure of Kaczynski’s condition? What about the fact that Kaczynski’s brother and mother were working behind the scenes with the lawyers to convince Kaczynski to plead guilty to avoid the death penalty?
7.As discussed above, under Rule 1.14(b), “reasonably necessary protective action” includes “in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” Is it proper for a lawyer to seek appointment of a guardian for a client over the client’s objection? That was issue in the disciplinary case of Maryland lawyer Rhonda Framm, who agreed to represent client Robert Wilson in seeking to set aside a recently negotiated divorce settlement.104 Central to Framm’s strategy to vacate the settlement was showing that the client was incapacitated. After a psychiatric evaluation found that Wilson had a neuro-cognitive disorder (in part brought about by a prior stroke) that impaired his ability to understand complex information, Framm moved to vacate the settlement and appoint Wilson’s cousin as his guardian. In the hearing on the petition, Wilson (represented by appointed counsel) “denied that he was disabled and requested that the petition be dismissed,” while Framm argued in favor of guardianship on behalf of the cousin. Subsequently, the cousin decided to withdraw the petition, and Wilson filed disciplinary charges against Framm in relation to the guardianship petition (among other alleged misconduct). In ruling on the charges, the Maryland court of appeals held that Framm had failed to “abide by [her] client’s decisions concerning the objectives of the representation” under Rule 1.2(a) when she opposed her own client’s motion to dismiss the guardianship petition.105 The court further ruled that Framm had violated the conflict of interest rules by representing the client’s cousin in the guardianship hearing once it became clear that Wilson did not want a guardianship.106 Responding to Framm’s argument that she was only acting in accord with Rule 1.14 in pursuing the guardianship on behalf of a client with diminished capacity, the court stated that, although Framm was in a “difficult position,” she was not able to represent the guardian and the client simultaneously.107 This suggests that if a lawyer believes it is in the best 234interest of the client to have a guardian, and the client disagrees, the lawyer must either give up pursuit of the guardianship or withdraw from the representation. Do you think putting the lawyer to this choice advances the purposes of Rule 1.14? Are they any effective alternatives?
8.In the aftermath of his trial, Kaczynski wrote:
Perhaps I ought to hate my attorneys for what they have done to me, but I do not. Their motives were in no way malicious. They are essentially conventional people who are blind to some of the implications of this case, and they acted as they did because they subscribe to certain professional principles that they believe left them no alternative. These principles may seem rigid and even ruthless to a non-lawyer, but there is no doubt my attorneys believe in them sincerely.108
Suppose that the principles to which Kaczynski refers are a fundamental commitment to zealous advocacy and a belief that the responsibility of a defense lawyer in a capital case is to save the client’s life. Would you agree that these principles were “rigid and ruthless” as applied in Kaczynski’s case?
9.The United States Supreme Court confronted a related issue in Florida v. Nixon, 543 U.S. 175 (2004). There, the defendant, Joe Nixon, was charged with kidnapping a woman he had asked for assistance in a parking lot, and then burning her to death. The evidence of Nixon’s guilt was overwhelming. Among other things, Nixon confessed to police investigators, bragged about the crime to his brother and girlfriend, and numerous witnesses saw Nixon driving the victim’s automobile.
Faced with this incriminating evidence, Nixon’s defense attorney, Michael Corin, attempted to negotiate a plea that would avoid the death penalty—but was unsuccessful. He also had difficulty communicating with Nixon and could not get him to discuss a proposed strategy of conceding guilt and urging leniency during the penalty phase of the trial based on mental and emotional impairments.
Nixon was African American, and he demanded a different attorney and judge who were also African American. The trial judge denied those requests, and Nixon refused to attend trial. When questioned by the judge, he stated:
Y’all go ahead and have your trial if you want, but leave me out of it. You can sentence me, hang me, do what you want but leave me out of it. If you don’t give me no other lawyer. . . . Take me back to the jail and have Court without me. I don’t care.
The trial court found that Nixon knowingly waived his right to attend trial, and Corin proceeded with his strategy of conceding guilt and claiming mitigating circumstances. The jury imposed the death penalty.
A different lawyer represented Nixon in habeas proceedings, arguing ineffective assistance of counsel. The Florida Supreme Court agreed, on grounds that the concession of guilt was tantamount to a guilty plea and 235required the defendant’s affirmative consent. In so ruling, the court relied on United States v. Cronic, 466 U.S. 648 (1984), which held that counsel’s “failure to subject the prosecution’s case to meaningful adversarial testing” required automatic reversal.
In a unanimous opinion, the United States Supreme Court reversed. In its view:
When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.
What would you have done if you had been in Corin’s situation or on one of the courts reviewing the adequacy of his representation? One commentator described the case as involving “a mentally retarded black man with an appointed white lawyer on trial before a white judge in Leon County, Florida for killing a white woman.”109 Do the racial dynamics of the case affect your assessment?
Ethics scholar Lawrence Fox argues that Corin’s conduct was inconsistent with bar ethical rules because his concession of guilt relied on confidential information, protected by Rule 1.6, and Nixon had not consented to disclosure. In addition, Fox argues, Corin failed to adhere to Rule 1.14 concerning clients under a disability, discussed above.110 Recall the rule requires lawyers to maintain a normal lawyer-client relationship “as far as reasonably possible” with clients whose decisionmaking is impaired. Lawyers may also “seek the appointment of a guardian or take other protective measures” when they reasonably believe that the client “cannot adequately act in the client’s own interest.” Rule 1.14(b). What kind of relationship was “reasonably possible” with Nixon? Should Corin have sought to withdraw from the case or should he have requested the appointment of a guardian with whom to communicate on trial strategy? Should the trial court have granted a motion to withdraw and looked for an African American lawyer to represent Nixon?
10.In 2018, in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), the U.S. Supreme Court revisited the question of whether a defense lawyer could concede guilt. Robert McCoy was charged with triple homicide for the 2008 murders of his estranged wife’s mother, stepfather, and son in Louisiana. After firing his appointed counsel, McCoy hired Larry English.111 As the New York Times reported, “Mr. McCoy’s parents had paid Mr. English $5,000 to defend their son. They had borrowed the money, using their car as 236collateral.”112 The trial court informed McCoy that English was not certified to try death penalty cases, but McCoy asserted he wished to proceed.113
Evidence of McCoy’s guilt was strong; so strong, in fact, that English determined the only way to save McCoy from the death penalty was to concede that McCoy had committed the killings in the trial’s guilt phase and then argue for second-degree murder by reason of mental incapacity during the sentencing phase (a charge that did not carry the death penalty).114 The evidence against McCoy included: McCoy’s prior threats to kill his wife, who was under police protection, and a taped 911 call in which a victim, McCoy’s mother-in-law, could be heard yelling, “She ain’t here, Robert . . . . I don’t know where she is,” right before a gunshot was fired. In McCoy’s car, the police found a receipt for the ammunition used in the killings, as well as the phone used by the mother-in-law in the 911 call. McCoy had also been caught on video buying that ammunition on the day of the crime and two witnesses stated that McCoy had admitted to the killings after the fact. On top of all this, when McCoy was arrested, the gun used in the killings was under the seat of his car. Despite this mountain of evidence, McCoy insisted that he was out of town on the night of the murders and that he was framed by the police because he knew they were involved in a drug trafficking conspiracy—an alibi Justice Ginsburg, in her majority opinion, called “difficult to fathom.” 138 S. Ct. at 1507.
The McCoy facts were even more dramatic that those in Florida v. Nixon, 543 U.S. 175, 178 (2004), where defense counsel had proceeded at trial without Nixon’s participation—but Nixon himself, after having been informed of defense counsel’s strategy of conceding guilt, had neither consented nor objected. In contrast, McCoy not only strenuously objected when he learned of English’s plan, but asserted vigorous objections during the trial itself. Two weeks before trial, when English first announced his intent to concede that McCoy committed the triple murder, McCoy furiously instructed English “not to make that concession” and English was thus fully aware of McCoy’s “complet[e] oppos[ition]” to that strategy. Id. at 1506. Nonetheless, during his opening statement to the jury, English asserted there was “no way reasonably possible” that after listening to the evidence the jurors could arrive at “any other conclusion than Robert McCoy was the cause of these individuals’ death.” Id. McCoy objected in court to English’s opening statement and then testified at trial to his own innocence, using the frame-up alibi. At closing, English reiterated that “Robert McCoy committed these crimes” and asked for mercy in light of McCoy’s “serious mental and emotional issues.” Id. at 1507.
English’s strategy was plausible. He believed that he would undermine his credibility with the jury during the sentencing phase by insisting on McCoy’s innocence during the guilt phase, doubly so because of the 237bizarreness of McCoy’s “alibi.” Many would agree that conceding guilt to spare a defendant’s life is a reasonable strategy under some circumstances. However, the issue here was whether English could pursue a reasonable strategy over his client’s explicit objections. In the end, English’s strategy failed: McCoy was convicted on all counts and sentenced to death. On appeal, McCoy argued for a new trial on the ground that the trial court violated his Sixth Amendment rights by permitting English to concede guilt.
Justice Ginsburg, writing for a 6–3 majority, agreed with McCoy, holding that by permitting his lawyer to concede guilt over his objection, the trial court had violated McCoy’s fundamental right to “assistance of counsel” under the Sixth Amendment. As the Court put it, protecting client autonomy is core to the Sixth Amendment’s protection: “Autonomy to decide that the objective of the defense is to assert innocence” is a decision reserved to the client, just like the decision “whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Id. at 1508. By allowing English to override McCoy’s autonomy, the trial court committed a “structural” error requiring reversal; because the case was not about “ineffective assistance of counsel,” it was not subject to harmless error review. Id. at 1511.
Distinguishing Nixon, the Court stated that “Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective.” Id. at 1509. The Court also distinguished Nix v. Whiteside, 475 U.S. 157 (1986), in which defense counsel admonished the defendant that he would reveal the defendant’s avowed intent to commit perjury by presenting an alibi that counsel knew for a fact to be false. The Court found “[t]here was no such avowed perjury here” since “English harbored no doubt that McCoy believed what he was saying; English simply disbelieved McCoy’s account in view of the prosecution’s evidence.” Id. at 1510. English therefore faced no ethical conflict under Rule 1.2(d)’s proscription against assisting a client in a crime or fraud.
In the end, the Court’s majority expressed sympathy for English, but held firm to the idea that the decision to concede guilt was unambiguously for the client to make:
Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty. But McCoy insistently maintained: “I did not murder my family.” Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilty should have been off the table. The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment.
Justice Alito, joined by Justices Thomas and Gorsuch, disagreed. They argued that English never actually conceded guilt to the charged crime of first-degree murder, but rather “faced with overwhelming evidence that petitioner shot and killed the three victims, English admitted that petitioner 238committed one element of that offense, i.e., that he killed the victims.” In this view, English conceded the fact of the killings, while still arguing McCoy lacked the intent required for first-degree murder. “So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case.” Id.
Do you agree with the dissent’s distinction between conceding the fact of the killings and conceding legal guilt? Assuming the distinction holds, does it follow that the lawyer should be permitted to concede such a fundamentally important fact over the client’s objection? How would you square the McCoy majority’s assertion that the Sixth Amendment protects a defendant’s autonomy in deciding that “the objective of the defense is to assert innocence” with the deference given to Kaczynski’s lawyers in presenting the insanity defense over Kaczynski’s objection?
11.If McCoy truly believed that his prosecution was a bizarre government conspiracy, should English have treated him as a client with diminished capacity under Rule 1.14?
When representing juveniles, two paradigms are most common. The first is what might be called an “amicus curiae” approach. Assuming a highly paternalistic posture, lawyers adopting this approach attempt to determine the juvenile client’s best interest and advocate that interest in legal proceedings. The alternative is the conventional advocacy approach. Endorsed by the ABA Juvenile Justice Standards and other children’s rights groups, this approach defers to the client’s own preferences unless the client is impaired (i.e., lacks “capacity to direct the representation”).115
The two paradigms’ differences are most apparent in those instances when lawyers’ efforts at persuasion fail. When this happens, the amicus curiae approach attempts to accommodate concerns of both autonomy and protection by presenting all information to the decision-maker, including the client’s preferences and the lawyer’s assessments, and, from there, the lawyer acts as an intermediary between the client and the legal system.116
The approach is justified by the notion that the distinctive features of childhood and adolescence militate in favor of more hard-edged paternalism. Compared with adults, adolescents tend to be more subject to peer influence, more likely to engage in risky behavior, and more 239inclined to overvalue short-term concerns and undervalue long-term consequences.117 They may also lack sufficient experience to understand the full implications of certain choices.
Critics point out, however, that in trying to have it both ways, the “amicus curiae” strategy risks compromising both concerns. An attorney who reports the juvenile’s desires but then proceeds to undermine them by disclosing further, often confidential, information has hardly respected individual dignity and autonomy. Yet an attorney who fails to make such disclosures or who attempts to present all facts neutrally may be unable to provide the guidance that an overburdened and understaffed court requires. Further, critics ask: Why should attorneys be involved in a case if they function just like a judge or a social worker? What in lawyers’ training equips them to determine children’s best interests and what oversight structures are available if they are wrong? If lawyers function as de facto guardians, who will voice the concerns of the client as the client perceives them? After all, it is the client who will have to live with the consequences.118
Alternatively, when lawyers’ efforts at persuasion fail, those who endorse the conventional advocacy role believe that, once minors reach a certain age or demonstrate what the ABA Standards refer to as “considered judgment,” their decisions should control. Advocates of this approach believe that lawyers’ fundamental responsibility is to present—and advocate for—the child’s perspective. At the foundation of this approach is the Supreme Court’s decision in In re Gault, 387 U.S. 1 (1967), which found that juvenile hearings must meet basic due process standards of adult trials, including the right to counsel. Proponents of the conventional advocacy role for lawyers representing juveniles argue that anything less would violate the principles Gault establishes, even though Gault specifically concerns only criminal cases, not the full range of cases involving juveniles.119
This approach has several benefits. Avoiding pitfalls of paternalism, it obviously gives priority to individual dignity and autonomy. It is reasonable, as there is little evidence of systematic differences in older minors’ and adults’ reasoning ability or decisionmaking capacity—and lawyers representing adults do not equate competence with an ability to weigh accurately all the costs and benefits of available options.120 It takes 240account of institutional limits and competencies, as little in the history of juvenile and family courts suggest that even well-intentioned experts are reliably and objectively able to determine children’s “best interest.”121 And finally, as Martin Guggenheim notes, it seems “both inconsistent and unfair to treat the child as a morally responsible actor who must suffer the legal consequences of his own . . . acts and yet, at the same time, deny that he is autonomous enough to be capable or entitled to instruct counsel.”122 Yet, this approach is also, of course, susceptible to criticism as it might make lawyers complicit in advocating for objectively bad outcomes.
In recognition of these difficulties, some commentators have advocated a hybrid, more contextual approach. Seeking a middle path, this framework recognizes that age is not an adequate proxy for competence, and that a minor who is able to make considered decisions in some circumstances may be unable to do so in others. Under this approach, an attorney should focus on factors such as the risks of a “wrong” decision and the minor’s age, mental capacity, psychological stability, strength of preferences, and ability to make rational, consistent judgments without undue influence by others.123
a)The mother and step-father of a fifteen-year-old girl have retained you to defend their daughter on charges of vandalism and burglary. She comes from a troubled home and has a history of drug abuse. If she is willing to identify the other participant in the crime, the prosecutor will allow her to plead guilty to vandalism and will support her placement in a local halfway house with an excellent therapeutic counseling program. If she refuses, you believe that it might still be possible, on the eve of trial, to talk the prosecutor into a diversion program. Under that program, all charges will be dropped if your client successfully completes two years of probation, including participation in a youth-center counseling program. If your client fails to complete the program, the prosecutor can reinstate both charges and proceed against her as an adult felony offender. A third option is you could take the case to trial in juvenile court. There, you estimate that the chances of acquittal are about 40 percent. A conviction would probably result in a sentence of 241anywhere from six to eighteen months at the state’s correctional facility, an outcome that is likely to compound your client’s problems.
You believe that the halfway house (the first option) is by far the best option. Given your client’s current attitudes and closest friends, you doubt that she could manage to stay out of trouble for a two-year probation term. Since failure to complete that term might well result in a felony record, you believe that diversion (the second option) is not a particularly desirable strategy.
Your client’s parents agree. They would like their daughter to live in the halfway house, since it would provide the supervision that they are finding difficult and unpleasant to impose. But after preliminary conversations, your client appears adamantly opposed to the idea. She is unwilling to identify her accomplice, who appears responsible for supplying her occasional drug habit. She also appears more concerned about losing the ability to stay out late with friends if she moves to the halfway house than about the possibility of acquiring a felony record. She is frightened by the prospect of the state correctional facility, but has an unrealistic faith that she could talk her way out of a conviction if the case goes to trial.
How should you proceed? Should you raise the possibility of a diversion program if the prosecutor does not propose it? If the prosecutor mentions the possibility but does not make a formal offer, must you present that option to your client?
b)The facts are the same as in Part (a) except that the parents now oppose the halfway house. The stepfather is convinced that the daughter does not need therapy; she just has a “bad attitude” and needs more discipline. The mother, who is deeply religious, thinks that greater involvement in their local church is the answer. She has already enlisted the minister to talk with her daughter about part-time work and participation in the church choir and youth group. Your client agrees, but you suspect that she is simply doing whatever is necessary to avoid the halfway house. What should you do?124
c)The facts are the same as in Part (a), except that your client, after obtaining assurances of confidentiality, tells you that her stepfather has sexually abused her and that her mother refuses to believe it. The daughter doesn’t want to “destroy the family” by reporting the abuse and believes that she has the situation under control by locking her door and managing not to be in the house alone with her stepfather. Your state has laws requiring health professionals, but not lawyers, to report any suspicion of child abuse. How do you proceed?
References: Rules 1.2, 1.4, 1.6, 1.14, 1.8(f)(2).
2421.Given the facts of Problem 3(a), would it be justifiable to omit mentioning the diversion program?
2.In addressing the issues in Problem 3(c), what information would you need about abuse victims in general, or about this family situation in particular, before you decide how to proceed?
3.Consider the ABA’s Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996).125 Standard B-4 provides that the attorney generally should “respect the child’s expressed preference and follow the child’s directions throughout the course of litigation.” However, Standard B-4(3) adds:
If the child’s attorney determines that the child’s expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the lawyer’s opinion of what would be in the child’s interest), the lawyer may request appointment of a separate guardian ad litem and continue to represent the child’s expressed preference. . . . The child’s attorney shall not reveal the basis of the request for appointment of a guardian ad litem which would compromise the client’s position.
The Comment notes that one of the “most difficult ethical issues for lawyers representing children occurs when the child is able to express a position . . . that could result in serious injury.” This is particularly likely when the child desires to “live in a dangerous situation because it is all he or she knows, because of a feeling of blame or of responsibility to take care of the parents, or because of threats. The child may choose to deal with a known situation rather than risk the unknown world of a foster home or other out-of-home placement.” In most cases, the Comment suggests that this dilemma can be resolved by effective counseling. However, if the child “cannot be persuaded [to abandon a dangerous position], the attorney has a duty to safeguard the child’s interests by requesting appointment of a guardian ad litem, who will be charged with advocating the child’s best interest.” Yet as the Comment also acknowledges, “as a practical matter, this may not adequately protect the child if the danger to the child was revealed only in a confidential disclosure to the lawyer because the guardian ad litem may never learn of the disclosed danger.”
Does this Standard provide appropriate guidance on the facts of Problem 3(c)? If not, what would you propose?
4.The dilemma posed in Problem 3 is not only difficult, it may also be personally wrenching for the lawyer. The following is excerpted from a case report written by a third-year law student working in the clinic of an urban law school. The report helps to underscore potential issues with the “conventional advocacy” approach, described above:
A child can’t sue, a child can’t enter into a contract, a child isn’t considered able to consent to sex, but yet, for the purpose of legal 243ethics, a lawyer must treat a child just like an adult client: she must advocate for the child’s stated interests, no matter how obvious it is to her that the stated interests are not in the best interests of the child.
Monday I picked up the case of A.B. She is a thirteen year old girl who was arrested for Theft II. She apparently had no prior record (later I discovered she had a shoplifting record in [another state]). When I saw her in the cellblock, the first thing that struck me was the way she was dressed—like a prostitute. I expected her to be scared, upset . . . instead she laughed at nearly everything. She told me she had only missed two days of school this year and that she participates in track, choir, and cheerleading! Nearly everything she said was a lie, but it was amazing how quickly she would think of such things and how easily they would roll off her tongue, with such conviction (she could be president someday). . . .
When I went into the hallway to interview her parents, they informed me that they refused to have her released to them.
Parents: She constantly runs away, spends all of her time on the streets with twenty-one year olds (the age of some first year law students), never goes to school, does drugs, is completely out of control.
The parents are not married or [living] together but they both showed up in court together and stood firm in their decision. It was clear that they believed that this girl desperately needs help and that getting it through the system was in A.B.’s best interests. I thought they were well-meaning but misguided at the time.
The government hadn’t been looking to detain her but when they found out the parents didn’t want her released the intake worker and prosecutor both recommended that she be placed in a shelter home until trial. The government did not file a petition (formal charge) and the statute says filing of petition may be delayed for 5 days upon good cause shown. The prosecutor’s showing of good cause consisted of an assertion that they haven’t been able to contact the Complainant. The judge denied my motion to dismiss the case for lack of good cause for the five-day hold. The probable cause hearing consisted of the arresting officer testifying as follows: The Complainant called him and said that she had given A.B. $100 to hold for her in her bag. When she asked for it back the next day, A.B. wouldn’t give it to her. A.B. was then arrested and there was no money in her bag. I only asked three questions on cross because it was so obvious to me that they hadn’t established probable cause that I didn’t want to mess it up. The government apparently had no information about the Complainant (thus the request for a five day hold in filing the petition). It was just a hearsay account of an anonymous Complainant with no evidence as to why this mystery person (that the government did not know enough about to even contact) should be believed. If she had called 244and said I took her money would there be probable cause to hold me for theft? The judge found probable cause.
Then the detention argument. Pretrial detention is for kids who are a danger to themselves or others or unlikely to show up at their hearing otherwise. The ONLY reason they were looking to detain her (as conceded by the prosecutor) was that the parents didn’t want her back. She was ordered into a shelter home. She was crying her eyes out as she heard in open court that her parents did not want her back. Afterwards I went back to the cellblock to talk to her and she was not laughing or smiling anymore. “I have no parents,” she said with tears streaming down her face. I felt really bad for her at the time although in the back of my mind I knew that the parents were doing what is best for her and I was arguing for something not in her best interest: for her to be put back on the street with her twenty-one year old boyfriends, drugs, etc. rather than getting help that she desperately needs.
The next day, feeling that my client got railroaded, I filed an emergency motion to review the findings on good cause for the five day hold and probable cause to detain. Today the prosecutor called and said the government has decided to drop the case. Though I don’t know why, it is probably because they couldn’t contact the complaining witness. The motion may have helped. Tomorrow she is to be released. The question is: released to whom? Social services contacted her aunt and secured a promise that the aunt would take her if the parents won’t.
Tonight I called A.B.’s mother to tell her A.B. will be released and find out if she plans to take her tomorrow. . . . The mother still refuses to take her. She asked me what was the point of this whole thing if she is just going to be released. She asked what she is supposed to do when she has tried counseling and tried having her live with family members and A.B. is just completely out of control and nobody will see that she needs help. She asked why the law doesn’t protect her right as a parent who tries hard and cares about her child, but gives lawyers and all sorts of rights to children so they can be released back out onto the street. She asked what kind of a threat she can use on A.B. now that “they’ll lock your ass up if you commit a crime” has been proven idle. She said she refuses to take A.B. back if that’s what it takes to get somebody to listen to her and get help for A.B. before she gets pregnant, gets AIDS or ends up dead. The mother was very upset but was also respectful to me throughout the conversation and even thanked me for calling her when it was over. She pointed out how the system has failed and pointed out my role in that.
I really didn’t have any answers for her. It is a little too much reality for me—I will be happy next fall to go off into the world of faceless corporations squabbling over obscure language in contracts, where the immorality of lawyering is a bit more innocuous.
245Do you think the student did the right thing in this case?
Most of the problems of paternalism we have examined in this chapter involved clients who are less competent, mature, well-educated, or well-off than their lawyers. This is scarcely surprising, because opportunities for paternalism arise only when lawyers believe they know better than their clients and have the power to put that belief into practice. Lawyers are less likely to have the confidence or the opportunity to second-guess wealthy, powerful, or sophisticated clients. Yet these clients also can have bad judgment or selective blind-spots. It frequently happens that the more canny the clients, the more difficult it is to dissuade them from mistakes because “[c]lients who’ve spent a lifetime outsmarting their opponents always think they know more about being a lawyer than their lawyer.”126 In the words of one Washington, D.C. white-collar defender, a powerful client who “has been in charge of his own life . . . is not used to releasing control” to his lawyer.127 If the lawyer is to do the job successfully, it will often be necessary to manipulate or “manage” the client for his own good—and that raises the problem of paternalism.
Under what circumstances might paternalism be proper for lawyers representing clients with no “disability” other than bad judgment? Consider the ABA Section on Litigation’s Ethical Guidelines for Settlement Negotiations (2002).128 Standard 3.2.4 provides:
A lawyer should provide a client with a professional assessment of the advantages and disadvantages of a proposed settlement, so that the client can make a fully-informed decision about settlement. Any effort to assist the client in reaching a decision should avoid interference with the client’s ultimate decisionmaking authority.
The Committee Notes on that Standard add:
The lawyer’s role in connection with settlement negotiations is one of advisor to and agent of the client. The lawyer should adhere to that relationship even when the lawyer’s judgment or experience leads the lawyer to believe that the lawyer more fully appreciates the wisdom of a proposed course of action than the client does. While a lawyer can and often should vigorously advise the client of the lawyer’s views respecting proposed settlement strategies and terms, that advice should not override or intrude into the client’s ultimate decisionmaking 246authority. . . . A lawyer should not threaten to take actions that may . . . induce the client’s assent to the lawyer’s position respecting a proposed settlement. Efforts to persuade should be pursued with attention to ensuring that ultimate decisionmaking power remains with the client.
Does that standard strike the appropriate balance for cases like those presented in Problem 4 below? What if a client’s foolish decisions could have disastrous effects on other corporate stakeholders, such as employees and investors, as well as the client’s reputation in the business community?
a)You are an experienced white-collar defense attorney representing Buckley, a nationally-renowned securities broker who has been charged with insider trading and mail fraud. You have negotiated a plea agreement with the prosecution that would involve a large but not catastrophic fine, less than a year in jail, and a lifetime ban from securities trading, in return for assistance in the prosecution of others in the securities industry. In your view, the agreement is an excellent one for Buckley, who otherwise faces years in prison. Buckley, however, is convinced that he will be acquitted at trial. In his opinion, the prosecution’s case is not strong and the prosecutor is not smart. He is also convinced that the same charm and charisma that have advanced him for his entire career are sure to win over the jury.
That is not how you see the case. You know that the prosecution’s evidence is very strong, and your trial experience convinces you that Buckley will come across to jurors as glib, arrogant, and unlikable. Buckley strikes you as a man who has beaten the system so often that he has persuaded himself the system can always be beaten, but there is little doubt in your mind that he will be convicted. You have repeatedly explained your assessment of the case, discreetly at first, then quite bluntly. Buckley’s response has invariably been the same: “I’ve made a hundred million dollars selling myself to the hardest guys on Wall Street, and no lawyer is going to tell me that I can’t sell myself to a jury.” He has threatened to fire you. You have considered quitting.
You are now contemplating alternative strategies. One is to propose that Buckley give a “dress rehearsal” of his testimony before a jury composed of secretaries and paralegals from your firm; one of your partners would do the direct examination and you would do the cross. Afterwards, the mock jurors would give Buckley their candid opinion of his performance. You would select jurors likely to agree with your assessment of the case. Another possibility is to enlist Buckley’s wife to place pressure on him to accept the plea.
b)Assume also that you have just received information that will enable you to discredit one of the prosecution’s witnesses. In your view, 247the prosecution’s case will remain strong enough to convict Buckley. You are convinced, however, that if you inform Buckley about the new information, his resolve to reject the plea agreement will be even greater. You plan not to tell him about the information.
Would any of these strategies be proper? Can or should you withdraw if Buckley insists on going to trial?
References: Rules 1.2(a), 1.4, 1.16, 8.4(c).
You represent a powerful client who is under investigation by the U.S. Department of Justice (DOJ). Prosecutors from the DOJ have asked to interview your client in connection with possible obstruction of justice charges. He wants to be interviewed. In his view, asserting his Fifth Amendment right against self-incrimination will seriously damage his reputation, and he believes that he has nothing to hide.
You worry that even if he has not engaged in obstruction, there is a real possibility that he will perjure himself during an interview, which will be conducted under oath. That concern is confirmed in a rehearsal of his possible testimony. Your client lost his temper, began ranting, and made what you believe are demonstrably false statements. You remind your client that in a deposition in earlier litigation, he had similar difficulty staying focused and avoiding perjury.
When he tells you that this interview will be different and he is confident of his ability, you consider saying: “Your prior experiences suggest that you have trouble staying on the subject. And that can defeat you. If you misstate something, then you could be subject to perjury charges. Please don’t testify. It’s either that or an orange jump suit. If you insist on the interview, I can’t represent you.”129
Is this what you should say? What other options might you consider?
References: 1.2, 1.4, 1.16, 2.1, 8.4.
Most lawyer-client relationships end when the lawyer’s work for the client is completed. In these routine cases, following the Restatement rule, the lawyer is required to “allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” 130 Further, unless the client consents to nondelivery or “substantial grounds exist for refusing to make delivery,” the lawyer must promptly turn over “such 248 originals and copies of other documents possessed by the lawyer relating to the representation as the . . . former client reasonably needs.” 131 Similarly, the lawyer must return “funds or other property in the lawyer’s possession belonging to” the client. 132
Beyond this, the Rules are clear that a client may terminate the relationship at any time, for any reason, with or without cause, by discharging the lawyer and paying any outstanding portion of the lawyer’s earned fee.133
The more difficult issue, however, is: When may or must a lawyer effect an early termination of the lawyer-client relationship through withdrawal? Rule 1.16 provides guidance on this question. The Rule is divided into categories of mandatory and permissive withdrawal. Rule 1.16(a) states when withdrawal is mandatory. In addition to the situation in which the client fires the lawyer, withdrawal is mandated when (1) “the representation will result in violation of the rules of professional misconduct or other law,” or (2) when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”
Rule 1.16(b) identifies the conditions for permissive withdrawal. It allows a lawyer to withdraw if:
(1)withdrawal can be accomplished without material adverse effect on the interests of the client;
(2)the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3)the client has used the lawyer’s services to perpetrate a crime or fraud;
(4)the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5)the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6)the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7)other good cause for withdrawal exists.
Note that, while a lawyer would be required to withdraw under 1.16(a)(1) if she knows that the client is committing (or plans to commit) 249a crime or fraud, the lawyer is permitted to withdraw under 1.16(b)(2) if she has only a reasonable belief of the client’s criminal or fraudulent conduct. Relatedly, if the lawyer knows that the client plans to commit a crime or fraud in the future, or is in the process of committing an ongoing crime or fraud in the present, withdrawal is mandatory. However, if the lawyer’s services have been used by the client to commit a past crime or fraud (and there is no reason to believe it will recur), then withdrawal is at the lawyer’s discretion.
As Rule 1.16(b)(4) indicates, a lawyer may withdraw, even if doing so will have an adverse effect on the client, when the lawyer considers the client’s action “repugnant” or fundamentally disagrees with it. Sections (5) and (6) are designed to protect the lawyer from clients who do not uphold their obligations in the representation. As Comment 8 states: “A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.” Withdrawal based on nonpayment may only be accomplished after the client has been given “reasonable warning.” In addition, a lawyer may withdraw under section 1.16(b)(6) if the client’s actions make representation “unreasonably difficult,” such as when the client does not respond to reasonable requests for information or communication.
In litigation, it is usually the case that withdrawal requires court permission. Rule 1.16(c) thus recognizes:
A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
Then, if withdrawal is permitted, the protections of 1.16(d) come to the fore. Rule 1.16(d) provides:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Termination of the lawyer-client relationship does not mean termination of all lawyer obligations to that client. Most significantly, a lawyer’s duty of confidentiality to the client never ends. 134 This means both that the lawyer is bound not to disclose former client confidences and, even in the absence of disclosure, may not use “information relating 250 to the representation to the disadvantage of the former client.” 135 Related to this concern about former client confidences, a lawyer must avoid representation in the “same or a substantially related matter” that would conflict with the former client’s interests (without former client consent). 136
1.Review Problems 1 through 5 above. Can you identify any situations in which the lawyer is required to withdraw? Are there any situations in which the lawyer is permitted to withdraw? If so, should the lawyer exercise discretion to do so?
2.When representation ends in the normal course is not always crystal clear and can create problems when the lawyer believes her obligations have been discharged but the client thinks otherwise. In National Medical Care, Inc. v. Home Medical of America, Inc., the court set forth a typology of representation categories bearing on this issue: “(1) the law firm may be retained as general counsel to the client, handling all legal matters that may arise for a client, (2) the law firm may be retained to represent the client in all matters that may arise regarding a specific area of practice, such as litigation, tax, or employment matters, or (3) the law firm may be retained to represent the client only as to a specific matter or matters.”137 The court stated that, as to the first two categories, representation was presumed to be ongoing even if there were no pending matters “because the reasonable expectation remains that the law firm will handle matters in the future for that client as they arise.”138 As to category (3), the reasonable assumption is that the representation ends “when the matter is concluded.”139 Confusion may arise, however, as to which category a lawyer is in if there has not been a clear agreement at the outset. And the consequences are significant: If the client’s belief of ongoing representation is reasonable, it would mean that the lawyer continued to hold duties to the client and could not, for instance, take on an adverse client without the original client’s consent. Because of this, lawyers are counseled to make the nature of representation (ongoing versus discrete) explicit in the retainer and, if the lawyer believes the representation has ended, to indicate that fact in a termination letter to the client.140
2513.When would a lawyer be justified in withholding documents from a former client? The Restatement says that originals and copies relating to the representation must be turned over absent “substantial grounds” for nondelivery. But what grounds qualify as “substantial”? Comment c to Restatement § 46 states that a “lawyer may refuse to disclose to the client certain law firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s possible malpractice liability to the client. The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved.” How far should this extend? Can a lawyer retain preliminary drafts and legal research memoranda? What about internal memoranda that contain factual information from client interviews as well as the lawyer’s own impressions of the client’s credibility and personality?
What should the lawyer do with client documents when the client has not yet fully paid the lawyer’s fee? Is it appropriate for the lawyer to place a lien on client documents, withholding them in an action to recover the lawyer’s fee? Rule 1.8(i) permits a lawyer to “acquire a lien authorized by law to secure the lawyer’s fee or expenses,” and most state bars have upheld the practice in the absence of prejudice to the client: for example, requiring a lawyer to turn over documents with evidentiary value in pending litigation.141
Consider the following case from a law school clinic. Student lawyers have prepared an affidavit for a client to file in a civil matter. Before filing, however, they discover that the client has been lying to them, and the facts attested to in the affidavit are untrue. The students withdraw from the case. The client asks them for the affidavit. It seems plausible that he intends to file it pro se or to ask his successor counsel to file it. The client insists that is not his intention, and the students do not know that it is. Should they refuse to give the affidavit to their now-former client?
4.As discussed above, when a client is engaging in conduct that the lawyer fears is illegal, whether the lawyer must withdraw as a mandatory matter or simply may withdraw as a permissive matter hinges on the lawyer’s degree of certainty about the illegality. Under Rule 1.16(a)’s mandatory withdrawal requirement, the lawyer must withdraw if “the representation will result in violation of the rules of professional conduct or other law”? This is an actual knowledge standard: The lawyer must know with certainty that the client’s actions will be illegal or violate the ethics rules, and knowledge may be inferred from the circumstances. Comment 2 to Rule 1.16 states that a lawyer must withdraw “if the client demands that the lawyer engage in conduct that is illegal” but is “not obliged to . . . withdraw simply because the 252client suggests such a course of conduct.” Conversely, withdrawal is merely permissive if the client “persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.” When does the level of knowledge tip from a “reasonable belief” to “actual knowledge”? Consider the lawyer for a criminal defendant accused of murder, who insists on testifying that at the time the victim was killed, the defendant was at a party at his girlfriend’s house. The lawyer interviews the girlfriend, who the lawyer finds to be evasive and unreliable. The lawyer then conducts a thorough investigation, contacting everyone who the client named as attending the party, but no one can corroborate the client’s alibi and, in fact, some of those named were out of town during the relevant period. It is illegal for the client to take the stand and testify falsely. If the client insists on testifying about the alibi, must the lawyer withdraw under these circumstances? Consider this question when you read the materials on perjury in Chapter 8.
5.When would withdrawal not impose a “material adverse effect on the interests of the client” and thus be permitted under Rule 1.16(b)(1)? In most cases, once the client has selected and begun working with counsel, there will be some tangible cost to the client if the lawyer withdraws: The client will have to go through the time and effort of finding another lawyer, transferring over relevant documents and other information, and getting the new lawyer up to speed. It is possible that the new lawyer may not have all the expertise and skill as the original lawyer and thus the client may feel shortchanged. At what point these costs amount to a “material adverse effect” is murky; materiality falls along a spectrum. Obviously, if a lawyer were to seek to withdraw on the eve of trial, that would cause massive adverse impacts on the client and could not be justified under (b)(1). On the other end, a lawyer may reasonably withdraw if the representation was only recently undertaken, and there are no important pending deadlines. Whether the lawyer can withdraw without material adverse effect further along in the representation will be fact-dependent. In this regard, the lawyer should consider whether the client will be able to find another lawyer of adequate quality; whether there is sufficient time for the new lawyer to learn the case and effectively represent the client’s interests; and whether the client will be forced to incur excessive costs in transferring the case. Remember, even if the lawyer cannot permissively withdraw under (b)(1), she may be able to do so under Rule 1.16’s other provisions.
6.What constitutes a “fundamental disagreement” between lawyer and client justifying permissive withdrawal under 1.16(b)(4)? In Njema v. Wells Fargo Bank, N.A., the court permitted a lawyer’s motion to withdraw after the client had filed civil contempt charges against the lawyer for refusing to file various motions in the case, including a stay pending interlocutory appeal, a motion for judgment as a matter of law, and an amended complaint in client’s action against Wells Fargo to resist foreclosure.142 The lawyer claimed he refused to file the motions because they were either strategically unwise or legally unsupportable. Based on the contempt charges, the court held that there had “been an irreconcilable breakdown in the relationship 253between [client and lawyer], and the trust . . . has been destroyed” such that the representation could not continue.143
7.Rule 1.16(b)(5) states that it is appropriate for a lawyer to withdraw if “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” When is it appropriate for a lawyer to withdraw over a client’s failure to pay the lawyer’s fee? The answer depends, in part, on the reason for the client’s failure to pay. If the client cannot pay because he simply lacks the funds, then it is may be appropriate for the lawyer to work with the client to reduce the fee or even write the fee off if the client is indigent and the representation can be conducted pro bono. If, however, the client has the money to pay but is withholding it out of dissatisfaction with the lawyer’s services or billing practice, then the lawyer may consider withdrawal under the rule, although it is recommended that the lawyer first seek to resolve any disagreement over fees before seeking withdrawal as a last resort.
8.Rule 1.16(b)(6) permits withdraw if the representation “will result in an unreasonable financial burden on the lawyer.” How much responsibility should the lawyer have to consider financial burden at the outset of the representation? For instance, in a contingency fee case, if the lawyer knows or should know at the beginning of a lawsuit that it will be expensive to litigate and the claims are nonfrivolous but relatively weak, should that lawyer be permitted to withdraw once it becomes clear that loss is inevitable? What if the lawyer reasonably believed at the outset that the case was strong, but discovery revealed significant holes in the client’s case that made it unlikely the lawyer would ultimately recover any fee? Consider this issue in relation to Problem 6 below.
9.How much information must a lawyer give the court when asking for permission to withdraw under 1.16(c)? On the one hand, the lawyer owes a duty of confidentiality to the client that must not be breached in the process of withdrawal. On the other hand, the lawyer must give the court enough information for the court to determine whether withdrawal should be permitted, particularly when withdrawal would have an adverse effect on a client’s interests. The State Bar of California took up this issue in Formal Opinion Number 2015–192, based on the following situation: A lawyer represents a corporation that is prosecuting a trade secret misappropriation case against a former employee who left to work for the Client corporation’s primary competitor. When the lawyer comes across information showing that the claim against the employee is bogus, she attempts to persuade the Client’s CEO to dismiss the claim. When the CEO refuses, stating that “he does not really care about winning or losing the lawsuit, but that he merely wants to keep the lawsuit going in order to damage Competitor’s public image,” the lawyer seeks to effectuate a mandatory withdraw (since it would violate the Rules to continue advancing a frivolous lawsuit).144 However, when the lawyer asks the court for permission to withdraw, the judge 254“concerned about potential prejudice to the Client,” orders the lawyer to provide “a detailed declaration, filed under seal, about what your client said to you that makes you think you need to withdraw.”145 Noting the conflict between the lawyer’s duty of confidentiality to the Client and the lawyer’s duty to obey the court order, the California Bar stated that, while the lawyer “may be able to tell the court some of the circumstances leading to her request to withdraw,” she “must not cross the line and disclose confidential client information—here, for instance, CEO’s statements about his reasons for wanting to continue the litigation or any facts about the representation that would tend to portray Client in a poor light.”146 Recognizing the lawyer’s dilemma in not wanting to be held in contempt of court, the Bar stated that “we believe Attorney has a duty to take all reasonable steps to avoid the dilemma—either by obtaining Client’s consent to the in camera disclosure or some other compromise measure, or by filing a writ petition with the Court of Appeal challenging the court’s order.”147 In the event that all of those efforts fail, the Bar had only this to offer: “this Committee cannot categorically opine on how the attorney must choose between her competing duties to maintain the client’s confidences and to obey the court’s order. Whatever the attorney’s decision, however, she must take reasonable steps to minimize the impact of that decision on the client.”148 Is this helpful advice? Are there any other alternatives? What would you do if you were the lawyer in this situation?
The ABA, in evaluating the ethical propriety of disclosing confidences in a motion to withdraw because of a client’s failure to pay a fee, took a more forceful position. In Formal Opinion 476, the ABA stated that a lawyer seeking to withdraw over nonpayment of a fee should first seek to do so based simply on “professional considerations.”149 If the court presses for more detail, the lawyer is advised to continue “seeking to persuade the court to rule on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege; and if that fails; . . . submit only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the court determines is appropriate.”150 If the court insists on more information, the ABA’s position is that it would be permissible for a lawyer to reveal such information under the exception to confidentiality permitting a lawyer to disclose information to comply with a “court order.”151 The ABA emphasized that this analysis only applies to withdrawal for nonpayment of fees. Why do think it should be so limited? Could the same logic be applied to resolve the 255dilemma analyzed in the California State Bar opinion above? Note that unlike the Model Rules, California’s Rules do not create an exception to confidentiality to allow lawyers to comply with court orders.
10.On what grounds may a court refuse a lawyer’s motion to withdraw? This issue came up in the controversial case over the Trump administration’s effort to include a question about citizenship in the 2020 Census. In 2018, Secretary of Commerce Wilbur Ross, Jr. announced he would seek inclusion of such a question, raising concerns that immigrants who were either themselves not citizens or had family members who were not citizens would refuse to participate, driving down their representation in the official count and thereby affecting the allocation of congressional seats and federal funding based on Census figures. A number of lawsuits were filed by states, cities, and nonprofit groups to block the citizenship question. Although the administration claimed it was seeking inclusion of the question to get an accurate count of noncitizens to help enforce the Voting Rights Act, it was revealed during the litigation that the main architect of the citizenship question proposed it to the Trump administration as a way to suppress the political power of immigrant communities through redistricting. Even after a loss in the Supreme Court,152 the administration continued to press the issue, sparking further litigation.
In a case pending in the Southern District of New York, the administration sought to swap out eleven career DOJ attorneys who had been working on the case since its inception for other DOJ lawyers—presumably because the new lawyers were willing to continue litigating the Census question. Judge Jesse Furman rejected the motion, stating that the defendants had offered “no reasons” for the substitution of counsel. Judge Furman also expressed frustration with the administration’s claim that it did “not expect that withdrawal of current counsel will cause any disruption in the matter,” stating that mere “expectation” was “not good enough” given that there were significant motions pending and that, if the defendants still desired to add the citizenship question to the 2020 Census, “time would plainly be of the essence.”153 The order prompted a Trump tweet: “So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use. Could this be a first?”
11.Upon termination, aside from protecting client confidences, what other steps must a lawyer to take to “protect a client’s interests” under Rule 1.16(d)? Is a lawyer required to refrain from publicly criticizing a former client? Consider David Boies’s representation of Harvey Weinstein, the Hollywood mogul accused of systematic sexual abuse against dozens of women. After generating a firestorm of controversy for how he handled Weinstein’s case (which began in 2015 and included hiring a private firm to dig up opposition research to discredit Weinstein’s accusers), Boies appeared to throw his former client under the bus in an interview with The New Yorker: “Although he vigorously denies using physical force, Mr. Weinstein 256has himself recognized that his contact with women was indefensible and incredibly hurtful. In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem, and done something about it.”154 Given that civil and criminal charges were still pending against Weinstein, do you think this public statement was appropriate?
You represent two plaintiffs—Lisa and Jim Dolan—in a personal injury case. The case alleges that Bendectin, the drug that the defendant manufactured and sold to alleviate pregnant women’s morning sickness, in fact, caused catastrophic birth defects. Your complaint alleges that Lisa took Bendectin while pregnant to alleviate her nausea, and it caused her to give birth to a child (Jim) with malformed and missing fingers and a missing pectoral muscle. For that, you seek compensatory and punitive damages.
You’ve now been prosecuting the case for three years, and in that time, you’ve accumulated overwhelming evidence of the manufacturer’s negligence. (You can show that the defendant aggressively marketed Bendectin to pregnant mothers with almost no testing to ensure it was safe.) But, despite your best efforts, you’ve found only mixed and contradictory evidence bearing on whether Bendectin is, in fact, a teratogen (an agent that can cause a birth defect). Then, as if that weren’t bad enough, Lisa Dolan has become an increasingly demanding client; she calls you with incessant requests, both day and night. In addition, and maybe worst of all, the case has been extremely expensive to litigate. You took the case on a contingency fee basis; as such, you are responsible for all costs and expenses. Those costs have mounted, and the case has become a major financial drain on you and your law firm. It is starting to feel like a black hole that you pour money into, with no hope of seeing that money again.
a)Suppose that the defendant manufacturer offers a settlement of $20,000. This sum is tiny compared to Jim’s medical bills, and it is also dwarfed by what you initially hoped to recover—but, given the problems above, you strongly support the offer’s acceptance. You will still be out roughly $150,000 (which you’ve so far spent on scientific and medical experts, deposition costs, medical examinations, and the like), but at least you’ll be done with the ordeal.
Despite your persistent attempts to persuade her otherwise, however, Lisa Dolan adamantly refuses to accept the settlement offer. She wants her day in court and dreams of holding Bendectin’s manufacturer responsible for the harm she believes Bendectin caused her family.
257What do you do? Is disagreement about whether to accept a settlement offer a permissible ground to withdraw from representation under Rule 1.16?
b)Now suppose you moved to withdraw, Ms. Dolan opposed the motion, and the court where the case is pending denied your request per 1.16(c). Cf. Broughten v. Voss, 634 F.2d 880, 882–83 (5th Cir. 1981) (before granting a motion to withdraw, “it is incumbent on the court to assure that the prosecution of the lawsuit before it is not disrupted by the withdrawal of counsel, and that the withdrawal of counsel is for good cause”). A trial is scheduled to commence in two months. Once it begins, must you put on the best case possible, even if you believe that it’s hopeless, and the “best” case, with live expert witnesses, would require your expenditure of another $70,000?155
References: Rules 1.1, 1.2(a), 1.6, 1.16.
1 The Model Rules of Professional Conduct uses the phrase “client-lawyer relationship,” as a reminder that the client comes first. The two phrases are legally equivalent.
2This problem is adapted from Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980).
3Richard L. Abel, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings 107 (2008).
4La. State Bar Ass’n, Public Op. 19-RPCC-021 (2019).
5Steven M. Puiszis, A Lawyer’s Duty of Technological Competence, at https://www.hinshawlaw.com/assets/htmldocuments/Articles/ADavis-NYLJournalArticle%2003-01-2019.PDF (last visited Apr. 9, 2020).
6N.Y. State Bar Ass’n, Ethics Op. 842 (2010).
7Symbiotics, Inc. v. Ortlieb, 432 Fed. Appx. 216 (4th Cir. 2011).
8Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311 (2015).
9Although the Formal Opinion was based on the old version of the California Rules of Professional Conduct, its analysis relied on the ABA technology standard and thus remains applicable. State Bar of Cal., Standing Comm. on Prof’l Resp., Formal Op. No. 2015–193 (2015).
10Id.
11Id. at 4.
12 Id.
13D.C. Bar Ethics Op. 371 (2016).
14Kenneth Paul Reisman, Public Reprimand, 2013 WL 5967131 (Mass B. Disp. Bd. 2013).
15D.C. Bar, supra note 13; see also N.Y. State Bar Ass’n, Social Media Ethics Guidelines 24 (2019) (stating that, although a lawyer may advise a client to take down social media content, the lawyer “must be cognizant of preservation obligations applicable to the client and/or matter”).
16Jamie J. Baker, Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society, 69 S.C. L. Rev. 557, 570–71 (2018).
17N.Y. Bar Social Media Ethics Guidance 3–4 (2015).
18Stephen E. Schemenauer, What We’ve Got Here . . . Is a Failure . . . to Communicate: A Statistical Analysis of the Nation’s Most Common Ethical Complaint, 30 Hamline L. Rev. 631, 646 (2007).
19Asma Naeem, Bar Counsel: Failure to Communicate, Wash. Law. (Oct. 2005).
20In the Matter of Charles Edward Taylor, 306 Ga. 622 (Ga. 2019).
21Id. at 623–24.
22In re Disciplinary Action against Eichhorn-Hicks, 916 N.W.2d 32 (Minn. 2018).
23Kentucky Bar Ass’n v. Ulrich, 527 S.W.3d 813 (Ky. 2017).
24Stephen C. Sieberson, Two Lawyers, One Client, and the Duty to Communicate: A Gap in Rules 1.2 and 1.4, 11 U.N.H. L. Rev. 27 (2013).
25Id. at 55.
262015 N.C. State Bar Formal Op. 4, 2015 WL 5927498, at *2 (2015).
27 Id.
28ABA Formal Op. 481, at 5 (2018).
29Id. at 7.
30Flannery v. Singer Asset Finance Co., LLC, 94 A.3d 553, 574 (Conn. 2014).
31Samson Habte, No Duty to Report to Ex-Clients, ABA Panel Says, ABA/BNA Lawyers’ Manual on Prof’l Conduct, Current Reports (Apr. 18, 2018).
32Providing further guidance, the ABA Criminal Justice Standards for the Defense Function, Standard 4–5.2(b) specifies that the following decisions are to be “made by a competent client, after full consultation with defense counsel”:
(i) whether to proceed without counsel; (ii) what pleas to enter; (iii) whether to accept a plea offer; (iv) whether to cooperate with or provide substantial assistance to the government; (v) whether to waive jury trial; (vi) whether to testify in his or her own behalf; (vii) whether to speak at sentencing; (viii) whether to appeal; and (ix) any other decision that has been determined in the jurisdiction to belong to the client.
33Steven Zeidman, To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling, 39 B.C. L. Rev. 841, 888 (1998).
34Rodney J. Uphoff & Peter V. Wood, The Allocation of Decisionmaking Between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking, 47 Kan. L. Rev. 1 (1998).
35See cases discussed in Zeidman, supra note 33, at 891.
36Id. at 904 (quoting public defender).
37A majority of prison and jail inmates have mental health problems, and an additional number of clients facing criminal charges end up in state mental institutions. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics (2006).
38For impairments, see sources cited in Zeidman, supra note 33, at 902. For over-optimism, see sources cited in Richard Birke, Reconciling Loss Aversion and Guilty Pleas, 1999 Utah L. Rev. 205; Jeffrey J. Rachlinski, The Uncertain Psychological Case for Paternalism, 97 Nw. U. L. Rev. 1165, 1172, 1192 (2003).
39Zeidman, supra note 33, at 902, 908.
40Margareth Etienne, The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers, 95 J. Crim. L. & Criminology 1195, 1245 (2005) (quoting unnamed lawyer).
41See, e.g., Tom Tyler, Why People Obey the Law: Procedural Justice, Legitimacy, and Compliance (1990); Robert J. MacCoun, Voice, Control, and Belonging: The Double Edged Sword of Procedural Fairness, 1 Ann. Rev. Law & Soc. Sci. 171 (2006).
42Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423 (2007). Most pro se defendants have standby counsel who can help explain rules of evidence and assist in investigation. Id. at 485.
43See cases discussed in Zeidman, supra note 33, at 841–42, 887.
44386 U.S. at 744.
45Etienne, supra note 40, at 1231 (quoting unnamed lawyer).
46Id. at 1232.
47See Skinner v. Switzer, 562 U.S. 521 (2011) (involving trial attorney’s decision not to request test).
48Norman Mailer, The Executioner’s Song 482, 505–06 (1979); see also State v. Berry, 706 N.E.2d 1273 (Ohio 1999) (denying defender’s motion to review competency of death-row inmate who desired to abandon all appeals). For discussions of lawyers’ motivations, see Anthony V. Alfieri, Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty Abolitionists, 31 Harv. C.R.-C.L. L. Rev. 325 (1996); Richard W. Garnett, Sectarian Reflections on Lawyers’ Ethics and Death Row Volunteers, 77 Notre Dame L. Rev. 795, 801 (2002). For reasons for defendants’ decisions, including prison conditions, mental health impairments, and the anxieties of a prolonged appellate process, see id. at 803, 816; Michael Mello, A Letter on a Lawyer’s Life of Death, 38 S. Tex. L. Rev. 121, 166 (1997).
49Aly Anderson, The 1977 Execution of Gary Gilmore, Utah Commc’n History Encyclopedia, May 4, 2010.
50Amnesty Int’l USA, Voluntary Death Penalty (2011).
51Kamela Nelan, Restricting Waivers of the Presentation of Mitigating Evidence by Incompetent Death Penalty ‘Volunteers,’ 27 Dev. Mental Health 24, 25 (2008).
52See Stephen Ellmann, Lawyers and Clients, 34 UCLA L. Rev. 717 (1987); Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. Rev. 315, 338–39 (1987).
53Austin Sarat & William L.F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer’s Office, 98 Yale L.J. 1663 (1989).
54David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 Colum. L. Rev. 1004, 1036–37 (1990). For another example of highly paternalistic attorney-client relationships, this time in personal injury practice, see Nora Freeman Engstrom, Run-of-the-Mill Justice, 22 Geo. J. Legal Ethics 1485, 1500–01 (2009). For a discussion of the complexity of power relationships, see William L.F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 Cornell L. Rev. 1447 (1992).
55Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 Md. L. Rev. 563, 594 (1982).
56See Rules 1.5 & 1.8; Fred Zacharias, Limits on Client Autonomy, 81 B.U. L. Rev. 198, 212 (2001).
57Dennis F. Thompson, Paternalism in Medicine, Law, and Public Policy, in Ethics Teaching in Higher Education 246 (Daniel Callahan & Sissela Bok eds., 1980).
58Id. at 247.
59Samuel Gorovitz, Doctors’ Dilemmas: Moral Conflict and Medical Care 36–37 (1982).
60Thompson, supra note 57, at 250–51.
61For further discussion, see generally John Kleinig, Paternalism (1982); Paternalism (Rolf Sartorius ed., 1983); Donald VanDeVeer, Paternalistic Intervention: The Moral Bounds of Benevolence (1986).
62Gerald Dworkin, Paternalism, in Morality and the Law 120 (Richard A. Wasserstrom ed., 1971).
63For a critique of hypothetical consent, see David Luban, Paternalism and the Legal Profession, 1981 Wis. L. Rev. 454, 463–67.
64Kennedy, supra note 55, at 641.
65Id.
66Restatement (Third) of Torts § 119: Intentional Torts to Persons (2015).
67Rules 1.6(a), 1.7(b)(4), 1.8(a)(3), 1.8(b), 1.8(f)(1), 1.8(g), 1.9(a), 1.9(b)(2).
68Deborah L. Rhode, Class Conflicts in Class Actions, 34 Stan. L. Rev. 1183, 1235 & n.212 (1982) (assembling material).
69Corey S. Shdaimah, Negotiating Justice: Progressive Lawyering, Low-Income Clients, and the Quest for Social Change 100 (2009).
70For legal contexts, see Deborah L. Rhode, Ethics in Counseling, 30 Pepp. L. Rev. 591 (2003). For medical contexts, see Gorovitz, supra note 59, at 38–54.
71Abbe Smith, The Lawyer’s “Conscience” and the Limits of Persuasion, 36 Hofstra L. Rev. 479, 491 (2007).
72Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 Fordham L. Rev. 1073, 1084–85 (1994). For the influence of stress on cognitive capacity, see Robert S. Stawski et al., Stress-Related Cognitive Interference Predicts Cognitive Function in Old Age, 21 Psych. & Aging 535 (2006).
73This case is modeled on one described in John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 2007 (2008).
74This hypothetical is modeled on Edward Bennett Williams’ refusal to immediately redraft the will of Philip Graham, owner of the Washington Post. Graham died before the will was changed. His wife Katherine inherited the paper and gave its legal business to Williams. See Evan Thomas, The Man to See 178–80 (1991); Margulies, supra note 123, at 1085–86.
75Zeidman, supra note 33.
76M.J. Wilkin & D. Dill, Long Black Veil (song).
77This problem is drawn from a case in New Jersey, a state with a mandatory-disclosure rule. Richard Pliskin, The Ethics of Suicide, N.J. L.J., June 20, 1994, at 1.
78Susan D. Carle, The Settlement Problem in Public Interest Law, 29 Stan. L. & Pol’y Rev. 1, 9–10 (2018).
79Id. at 12.
80Phyllis Coleman & Ronald A. Shellow, Ineffective Assistance of Counsel: A Call for a Stricter Test in Civil Commitments, 27 J. Legal Prof. 37, 56 n.172 (2003).
81Robert B. Fleming & Rebecca C. Morgan, Lawyers’ Ethical Dilemmas: A “Normal” Relationship When Representing Demented Clients and Their Families, 25 Ga. L. Rev. 735 (2001).
82For classic discussions of this problem, see Milton D. Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 Yale L.J. 171, 301 (1944); Alexander M. Meiklejohn, Contractual and Donative Capacity, 39 Case W. Res. L. Rev. 307, 314–29 (1989).
83Thompson, supra note 57, at 252.
84See Margulies, supra note 123, at 1083–84; Nancy M. Maurer & Patricia W. Johnson, Ethical Conflicts in Representing Capacity, 96 Practicing L. Inst. 1143, 1158 (2001).
85Margulies, supra note 123, at 1085; see also Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 790 (1983) (defining judgment as “the faculty of moral imagination, the capacity to form an imaginative conception of the moral consequences of a proposed course of action and to anticipate its effect on one’s character. A person has good judgment if this faculty is developed and strong, poor judgment if it is not”).
8624 N.E. 935, 937 (N.Y. 1890).
87Luban, supra note 63, at 479.
88Id. at 478–79. For further discussion, see Linda F. Smith, Representing the Elderly Client and Addressing the Question of Competence, 14 J. Contemp. L. 61 (1988); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 Utah L. Rev. 515.
89Dusky v. United States, 362 U.S. 402 (1960) (per curiam).
90554 U.S. at 175–76.
91Coleman & Shellow, supra note 80, at 57; Maurer & Johnson, supra note 84, at 1159–60.
92Michael L. Perlin, Mental Disability Law: Civil and Criminal § 8.17 (1989).
93Michael L. Perlin, A Critical Evaluation of the Role of Counsel in Mental Disability Cases, 16 Law & Hum. Behavior 39 (1992).
94Samuel Brakel, Legal Aid in Mental Hospitals, 1981 Am. B. Found. Res. J. 23, 81, 84–85; see also John R. Murphy, Older Clients of Questionable Competency: Making Accurate Competency Determinations Through the Utilization of Medical Professionals, 4 Geo. J. Legal Ethics 899 (1991).
95For problems in the guardianship system, see Carol D. Leonnig et al., Under Court, Vulnerable Became Victims: Attorneys Who Ignored Clients or Misspent Funds Rarely Sanctioned, Wash. Post, June 15, 2003, at A1; Carol D. Leonnig et al., Rights and Funds Can Evaporate Quickly: Attorney’s Power Thwarted D.C. Residents Trying to Remain Independent, Wash. Post, June 16, 2003, at A1.
96United States v. Kaczynski, 239 F.3d 1108, 1120 (9th Cir. 2001) (Reinhardt, J., dissenting).
4Because I conclude that the denial of Kaczynski’s right of self-representation rendered his plea involuntary, I do not consider his alternative argument that the plea was rendered involuntary by the court’s ruling that his counsel, not he, would decide whether a mental-health defense would be offered in the guilt phase of his trial.
8The government agreed with Kaczynski that he, not counsel, had the right to decide whether mental-health evidence should be presented and warned the court of “grave appellate error” if it ruled otherwise.
11Kaczynski’s motion to suppress evidence seized from his Montana cabin had been denied by the district court.
15The night before, Kaczynski apparently attempted suicide, although the record shows that Judge Burrell was unaware of that fact until after the January 8 hearing was over.
97Michael Mello, The United States Versus Theodore John Kaczynski: Ethics, Power and the Invention of the Unabomber (1999).
98Michael Mello, The Non-Trial of the Century: Representations of the Unabomber, 24 Vt. L. Rev. 417, 435 (2000).
99Id. at 472.
100William Finnegan, Defending the Unabomber, New Yorker, Mar. 16, 1998, at 55–56.
101Id. at 54.
102Id. at 59.
103Michael Mello, United States v. Kaczynski: Representing the Unabomber, in Legal Ethics: Law Stories 139, 165 (Deborah L. Rhode & David Luban, 2006).
104Attorney Grievance Comm’n of Maryland v. Rhonda I. Framm, Case No. 03-C-14-013918, Circuit Court for Baltimore County, Maryland (Aug. 24, 2016).
105Id. at 21.
106Id. at 30.
107Id. at 31.
108Mello, supra note 98, at 502.
109Thomas Adcock, A Matter of Death, N.Y. L.J., Nov. 12, 2004, at 16.
110Lawrence J. Fox, No Ethics for Capital Defendants, 16 Prof. Law. 2 (2005).
111Jeffery C. Mays, Can Lawyer Ignore Wishes of His Client?, N.Y. Times, Jan. 15, 2018, at A1.
112Adam Liptak, Facing the Death Penalty with a Disloyal Lawyer, N.Y. Times, Oct. 10, 2017, at A12.
113State v. McCoy, 218 So. 3d 535, 545 (La. 2016).
114One problem with this strategy, as Justice Ginsburg noted in her majority opinion, was that, at the time, Louisiana did not permit introduction of diminished capacity evidence without a plea of not guilty by virtue of insanity. McCoy, 138 S. Ct. at 1506 n.1.
115See Linda Elrod, An Analysis of Proposed Standards of Practice for Lawyers Representing Children in Abuse and Neglect Cases, 83 Fordham L. Rev. 1999 (1996); Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 1301, 1302 (1996).
116Inst. of Judicial Admin., Am. Bar Ass’n, Juvenile Justice Standards (1979). The New York State Bar Association’s Committee on Children and the Law states that a lawyer must advocate for the child’s wishes unless the child would face “substantial risk of imminent, serious harm” or the lawyer “is convinced that the child is not competent due to an inability to understand the factual issues involved in the case, or clearly and unequivocally lacks the capacity to perceive and comprehend the consequences of his or her decisions.” Standard for Attorneys Representing Children, N.Y. Bar Ass’n Committee on Child. & L. 12–13 (2015).
117Elizabeth S. Scott et al., Evaluating Adolescent Decisionmaking in Legal Contexts, 19 Law & Hum. Behav. 221 (1995).
118For these reasons, some critics of paternalism have advocated for getting rid of best-interest lawyering altogether. See Suparna Malempati, Beyond Paternalism: The Role of Counsel for Children in Abuse and Neglect Proceedings, 11 U. N.H. L. Rev. 97, 118, 122 (2013).
119Two law review symposia consider the legacy of Gault on its fortieth anniversary: Symposium, In re Gault, 9 Barry L. Rev. 1 (2007); The Promise of In re Gault: Promoting and Protecting the Right to Counsel in Juvenile Court: Symposium 2007, 60 Rutgers L. Rev. 1 (2007).
120David G. Scherer, The Capacities of Minors to Exercise Voluntariness in Medical Treatment Decisions, 15 Law & Hum. Behav. 431 (1991); Shannan L. Wilber, Independent Counsel for Children, 27 Fam. L.Q. 349, 356 (1993); see also Scott et al., supra note 117, at 220–31 (discussing research finding similarities in the understanding and reasoning capacities of adults and adolescents, but differences in capacities for judgment).
121Juvenile Justice Standards, supra note 116; see also Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399, 1424 (1996); Jean Koh Peters, The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 Fordham L. Rev. 1505 (1996). See generally Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (2000).
122Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 87 (1984).
123Peter Margulies, The Lawyer as Caregiver: Child Clients’ Competence in Context, 64 Fordham L. Rev. 1473, 1487–93 (1996); see also Peters, Roles and Content, supra note 121.
124For a similar hypothetical, see Jan C. Costello, “The Trouble Is They’re Growing, The Trouble Is They’re Grown”: Therapeutic Jurisprudence and Adolescents’ Participation in Mental Health Care Decisions, 29 Ohio N.U. L. Rev. 607, 609–12 (2003).
125The standards are available at http://www.americanbar.org/content/dam/aba/migrated/family/reports/standards_abuseneglect.authcheckdam.pdf.
126 Saundra Torry, In the Land of the Mighty, Titans Often Tussle , Wash. Post , June 6, 1994, at F7.
127 Id .
128 These standards are available at http:// www.americanbar.org/ content/ dam/ aba/ migrated/ 2011_build/ dispute_resolution/ settlementnegotiations.authcheckdam.pdf .
129This problem is based on an account by Bob Woodward of an exchange between lawyer John Dowd and President Donald Trump. Dowd was representing Trump during the investigation by Robert Mueller into Russian interference in the 2016 election. Bob Woodward, Fear: Trump in the White House 353 (2018).
130Restatement (Third) of the Law Governing Lawyers § 46(2) (2000).
131Id. § 46(3).
132Id. § 45(1).
133Rule 1.16, cmt. 4 (“A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.”); see also White Pearl Inversiones S.A. (Uruguay) v. Cemsua, Inc., 647 F.3d 684, 689 (7th Cir. 2011).
134Rule 1.6, cmt. 20.
135 Id . 1.9(c)(1).
136Id. 1.9(a).
1372002 WL 31068413, at *4 (Super. Ct. Mass. 2012).
138 Id.
139 Id.
140Determining when representation has officially ended may also affect the timeliness of a client’s malpractice claim under the relevant statute of limitations. Under the continuing representation rule, a claim for legal malpractice is tolled if the lawyer continues to represent a client on the specific matter in relation to which malpractice allegedly occurred. Until a lawyer has, in fact, effectuated a full withdraw from the representation, the statute remains tolled. Emails to client representatives indicating an intent to withdraw have been held not to terminate the representation. See Paravue Corp. v. Heller Ehrman LLP, 722 Fed. Appx. 671 (9th Cir. 2018).
141See, e.g., Colo. Bar Ass’n Ethics Comm., Formal Op. No. 82 (1989, amended 1995) (noting several bases for denying a retaining lien, including when the lawyer is guilty of misconduct or the “client’s papers are essential to the preservation of an important personal liberty interest”). For a critique of retaining liens, see John Leubsdorf, Against Lawyer Retaining Liens, 72 Fordham L. Rev. 849 (2004).
1422015 WL 12977504 (D. Minn. 2015).
143Id. at *5.
144State Bar of Cal. Standing Comm. on Prof. Resp. & Conduct, Formal Op. 2015–192, at 1.
145Id. at 2.
146Id. at 6.
147 Id.
148Id. at 10.
149ABA Formal Op. 476 (2016).
150Id. at 9.
151Id. (citing Rule 1.6(b)(6)). Here, it is noteworthy that the State Bar of California’s Formal Opinion 2015–192 on withdrawal was conducted under the prior version of California’s rules, which did not contain the Rule 1.6(b)(6) exception.
152Dep’t of Commerce v. New York, 588 U.S. __ (2019).
153Memorandum and Order, State of New York v. U.S. Dep’t of Commerce, No. 18-CV-2921 (JMF), S.D.N.Y. (July 9, 2019).
154Ronan Farrow, Harvey Weinstein’s Army of Spies, New Yorker, Nov. 6, 2017.
155The Problem is based, loosely, on Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510 (11th Cir. 1983) and Michael D. Green, Bendectin and Birth Defects: The Challenges of Mass Toxic Substances Litigation (1996).
Confidentiality and the Attorney-Client Privilege
One of the most central and at times contested requirements of a lawyer’s loyalty to clients is the duty of confidentiality. Many will at some point confront troubling dilemmas involving client confidentiality. For example, criminal defense lawyers may believe that their clients committed a crime for which someone else is about to be sentenced. A client may ask a lawyer to negotiate a contract without revealing to opposing parties that they are bargaining under a material misapprehension.1 A litigator may know of the existence of a “smoking gun” that may not be within the scope of the adversary’s discovery request. Lawyers representing family members may learn secrets that one member of the family is keeping from the others.2 Corporate lawyers may learn that their clients are marketing products that could cause life-threatening injuries.3
The Distinction Between the Duty of Confidentiality and the Attorney-Client Privilege
Confidentiality rules that speak to these dilemmas arise from two main sources: laws of evidence concerning the attorney-client privilege and bar ethical codes that specifically govern confidentiality. Though they are related, the attorney-client privilege and the ethical duty of confidentiality are not the same. The attorney-client privilege is a rule of evidence, which protects attorney-client communications from disclosure in a proceeding before a tribunal. By contrast, the much broader ethical duty of confidentiality forbids lawyers from divulging confidential information to anyone, not just to a tribunal. In terms of coverage, the attorney-client privilege protects only confidential communications to or from a client. By contrast, the rule of confidentiality, enshrined in Rule 1.6, protects all “information relating to representation of a client.”4 The rules governing the attorney-client privilege have been developed by courts and legislatures; the duty of 260confidentiality, though nominally promulgated by the jurisdiction’s highest court, is in fact part of the bar’s professional rules. The attorney-client privilege is riddled with exceptions; the duty of confidentiality also has a few exceptions, but those exceptions are more narrowly drawn.5
In the materials that follow, we present the attorney-client privilege first, then the ethical duty of confidentiality. Section A lays out the doctrinal elements of the attorney-client privilege, and Section B discusses its rationale. Section C presents one of the principal exceptions to the privilege, the so-called crime-fraud exception. In Section D, discussion turns to the attorney-client privilege when the client is an organization rather than an individual. In Section E we turn to the work-product doctrine. Then, in Section F, we explore the ethical duty of confidentiality, and Section G addresses various limits on that duty. Finally, Section H presents two Problems to aid in your understanding of how the attorney-client privilege and the duty of confidentiality interact.
A.The Attorney-Client Privilege: The Basics
The laws of evidence establishing an attorney-client privilege date back to the sixteenth century. In the classic formulation by John Wigmore, these laws provide:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.6
The Restatement (Third) of the Law Governing Lawyers § 68 preserves the kernel of Wigmore’s analysis:
[T]he attorney-client privilege may be invoked . . . with respect to: (1) a communication (2) made by privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.
Each clause of these formulas gives rise to important questions. What kind of advice is “legal”? Who besides a lawyer is a “privileged person”? What is a “communication”? What determines whether the client has disclosed information in confidence? What counts as “disclosure”? Does it encompass disclosures of otherwise unprivileged 261information from which privileged communications could be inferred? When is the privilege inadvertently waived? An extended body of law has evolved around these and other questions. Generally, this body of law suggests:
A parallel body of law has evolved around the related work-product privilege, which protects material prepared for litigation except on a showing of necessity by a third party; this privilege is discussed below in Section E.
262One of the most significant areas of development involves waivers. Waiver is so important because, once the privilege attaches, it can be waived if the client, the client’s lawyer, or another authorized agent of the client voluntarily discloses the communication to a non-privileged person. This waiver may be intentional or inadvertent. The privilege will presumptively be waived if: the client and lawyer fail to assert the privilege; the client or her agent (including her lawyer) intentionally discloses the communication to an unprivileged third party (e.g., a close friend); or the client or her agent implicitly or explicitly consents to disclosure.10 Related principles deny any protection between co-clients of the same lawyer in the same matter: thus, no privilege applies in subsequent litigation between co-clients. On the other hand, a co-client generally cannot unilaterally waive the privilege relative to third parties, without first securing the consent of the other co-clients.
One court has observed that waiver is a “loose and misleading label for what is in fact a collection of different problems,” and explains:
Cases under this “waiver” heading include situations as divergent as an express and voluntary surrender of the privilege, partial disclosure of a privileged document, selective disclosure to some outsiders but not all, and inadvertent overhearings or disclosures. 11
What if a lawyer inadvertently discloses a privileged communication to an adversary, for example by mistakenly turning over a privileged document during discovery? As Chapter 4, Problem 1 indicated, lawyers disagree about the ethical obligations of the lawyer who receives the privileged information; courts similarly differ over whether inadvertent disclosure waives the privilege. Most but not all recent decisions preserve the privilege in the face of accidental disclosure, and the Restatement § 79 agrees. For its part, Federal Rule of Evidence, Rule 502 focuses on reasonableness. It provides that privileged materials inadvertently shared during discovery in federal litigation are not waived “if . . . the holder of the privilege or [work product] protection took reasonable steps to prevent disclosure and . . . promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B) [notification to another party of privilege or work product protection].” 12
What are “reasonable steps”? The advent of digital technology in legal practice over the past two decades greatly magnifies the danger of 263inadvertent disclosure, for example, through unencrypted email, file sharing, and inadequate redactions in e-discovery.13 The Model Rules now caution lawyers to keep abreast of new technologies,14 and a 2017 ABA Formal Opinion explains that “reasonable efforts to protect against unauthorized disclosure in client communications thus includes analysis of security measures applied to both disclosure and access to a law firm’s technology system and transmissions.”15
To illustrate: In a 2017 case, a plaintiff insurance company’s counsel uploaded its own case files, with no password protection, into the same Box folder as discoverable documents. Counsel then mistakenly gave the adversary the URL to the entire Box folder in answer to a discovery request. Although the case files were clearly marked privileged and confidential, the judge found that plaintiff and counsel had not taken reasonable efforts to protect the files against disclosure, and the privilege was waived. In the judge’s words, plaintiff’s actions “were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it.”16
Particularly important in many cases of corporate misconduct is the issue of selective waiver . The issue arises because a company may wish to reveal privileged information to the government without waiving the privilege against a host of potential civil plaintiffs waiting in the wings.
Some government agencies, including the SEC, have taken the position that, in order to encourage full disclosure to regulators, organizations should be able to disclose information to the government, while retaining a privilege in subsequent suits by third parties. Courts, meanwhile, are divided—but most do not permit such selective waivers. In the view of the Sixth Circuit Court of Appeals, “the investigatory agencies of the government should act to bring to light illegal activities,” not support “wrongdoers in concealing the information from the public domain.” 17 Part of the concern is fairness to an adversary if partial revelation is allowed. As the Second Circuit has explained, “a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny.” 18 As courts often put it, once a party decides to waive the privilege on some 264 communications in order to use those communications as a “sword,” the party cannot use the privilege as a “shield” to protect similar information.
A related issue of selective waiver is whether waiving the privilege on one communication also waives the privilege on others. The issue figures in our next case. The governing federal standard is the following:
Federal Rules of Evidence Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a)Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
———
The case below considers this rule and another important issue—the distinction between privilege creation and privilege waiver—by examining whether the presence of third parties at an attorney-client conversation waives the privilege, or, alternatively, prevents it from forming in the first place.
Before turning to the decision, however, a little background on the case is helpful. This decision grows out of the massive Chevron-Ecuador litigation, arguably the most complex and contentious environmental litigation of all time. The case began in 1993, when a group of Ecuadoran peasants filed a class action lawsuit against Chevron. For two decades beginning in the 1960s, oil drilling by Texaco polluted the Lago Agrio area where the peasants lived. The pollution allegedly caused cancer in local residents as well as massive environmental devastation. Because Texaco was purchased by Chevron, Chevron became the defendant. After eighteen years of litigation, including removal of the case from the United States to Ecuador, the Ecuadoran court rendered an $18 billion judgment against Chevron, later reduced to $9.5 billion.
However, Chevron accused plaintiffs’ lead counsel Steven Donziger of introducing fraudulent evidence, and also accused the Ecuadoran court of corruption. The company fought enforcement of the judgment in every 265 country where Chevron had assets; it took the Ecuadoran government before an international arbitration panel; and it sued Donziger under civil RICO. After eight more years of litigation, Chevron won all its cases; the Ecuadoran plaintiffs withdrew their last enforcement lawsuit in July 2019, twenty-six years after the litigation began. 19
There were innumerable issues in the Lago Agrio litigation and they included issues of attorney-client privilege. In the RICO action against Donziger, Chevron’s counsel asserted the crime-fraud exception to the attorney-client privilege and successfully obtained discovery of his files. In addition, Chevron obtained outtakes and notes from a documentary filmmaker, whose film about the litigation, Crude, allegedly included scenes of ongoing fraud that were later edited out.
The case below concerns Chevron’s efforts to obtain the allegedly privileged files of Kohn, Swift & Graf, a law firm involved on the Ecuadoran plaintiffs’ side. Specifically, Joseph C. Kohn had been a contributing attorney and financier for sixteen years, from the inception of the initial class action in 1993 until Kohn had a falling out with Donziger in 2009.
United States Court of Appeals, Third Circuit
650 F.3d 276 (2011).
n Opinion by Greenberg, Circuit Judge.
This matter comes on before this Court on appeal from the District Court’s December 20, 2010 order granting Chevron Corporation (Chevron), and two of its attorneys, Rodrigo Pérez Pallares and Ricardo Reis Veiga (collectively with Chevron “the Chevron applicants”), discovery from attorney Joseph C. Kohn and his law firm, Kohn, Swift & Graf, P.C. (KSG), pursuant to discovery applications that the Chevron applicants filed under 28 U.S.C. § 1782. Section 1782 provides that “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,” subject to the express limitation that “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” 28 U.S.C. § 1782(a).
. . . The Chevron applicants sought section 1782 discovery for use in the Lago Agrio litigation [as well as related matters]. . . . The Ecuadorian plaintiffs and the Republic of Ecuador (collectively “appellants”), both of whom intervened in the District Court in this case, contend that the Court erred in granting the Chevron applicants’ section 1782 discovery applications and assert several challenges to the Court’s rulings. . . .
266The evidence the Chevron applicants presented in the District Court in support of their contentions came primarily from discovery that they obtained as a result of successful section 1782 applications they filed in the Southern District of New York, particularly from outtakes during the production of Crude, the documentary chronicling the Lago Agrio litigation. The outtakes were recordings made in the preparation of the final film that were not used in the documentary and were many times longer than the film itself. The Chevron applicants also introduced communications produced by Donziger, the lead American attorney for the Ecuadorian plaintiffs. . . . Kohn apparently was filmed for Crude on three occasions, during and after meetings in Philadelphia on April 10, 2006, June 5, 2006, and January 31, 2007. He appears in the released version of the documentary for less than 2 minutes, and, although we are not certain exactly how long he appears in the 600 hours of Crude outtakes, it is not a significant portion of that time, at least in a temporal sense, and, according to representations made at oral argument before us, likely was less than 2 hours.
Chevron suggests that Kohn’s file [to which they seek access] has communications related to its allegation that support its contention that [the $18 billion Ecuadorian judgment was procured by fraud]. . . .
[The District Court ruled] that Donziger, in allowing the crew filming Crude intimate access to the proceedings in the Lago Agro litigation, effected a broad subject matter waiver of the attorney-client privilege for all of Kohn’s communications related to that litigation. The Court also ruled that the Republic of Ecuador had failed to bear its burden of demonstrating the applicability of the community-of-interest doctrine. Because the Court granted the Chevron applicants discovery of all of Kohn’s communications related to the Lago Agrio litigation, it expressly declined to rule on the Chevron applicants’ contention that the crime-fraud exception operated to vitiate the attorney-client privilege. . . .
The District Court reasoned as follows in reaching its conclusion that the filming of Crude effected a broad subject matter waiver of the attorney-client privilege for all of Kohn’s communications relating to the Lago Agrio litigation:
[B]y inviting a documentary film crew to attend and record attorney meetings and other events where confidential matters were discussed, the Lago Agrio plaintiffs waived any otherwise applicable privilege or work-product protection for documents related to the Lago Agrio Litigation. The hundreds of hours of footage from the filming of Crude demonstrate that the Lago Agrio Plaintiffs arranged for the filmmakers to attend numerous attorney meetings and gave them broad access to information that would usually be treated as a confidential part of the attorney-client relationship. . . .
267The voluntary disclosure by a client of a privileged communication waives the privilege as to other such communications relating to the same subject matter made both prior to and after the occurrence of the waiver. Under some circumstances, a party making a very limited intentional disclosure is entitled to a fairness balancing test to determine if that the waiver extends to related documents. The Court concludes, however, that given the truly exceptional scope of the waiver in this case, the Lago Agrio Plaintiffs are not entitled to such a balancing test. To allow the Lago Agrio Plaintiffs to waive [the] privilege expansively for favorable documents and information as part of a calculated public relations campaign and then shield related documents behind the screen of privilege would be to permit the use of privilege and the work product doctrine as both sword and shield, an abuse that courts have discouraged.
As we have indicated, the Ecuadorian appellants make the fundamental contention that “the presence of strangers” during attorney meetings precluded the attorney-client privilege from attaching to what otherwise might be privileged communications. If that contention is correct, then the communications in the presence of the filmmakers never were privileged and thus there could not have been, in the words of the District Court, a “voluntary disclosure by a client of a privileged communication” and the District Court necessarily erred in reaching its result. . . .
The Chevron applicants’ arguments, and the District Court’s opinion, presuppose that the attorney-client privilege protected the material in Crude and its outtakes from disclosure, for only if there was such a protection could the disclosure of that material waive the attorney-client privilege protecting Kohn’s file. Thus, our initial inquiry necessarily is whether the Crude material was privileged in the first place. In order for the attorney-client privilege to attach to a communication, “it must be ‘(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.’ ” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting Restatement (Third) of the Law Governing Lawyers § 68 (2000)). We explained with respect to the third requirement in Teleglobe that “if persons other than the client, its attorney, or their agents are present, the communication is not made in confidence, and the privilege does not attach.” Here, the communications captured on film clearly were not made “in confidence” due to the presence of the filmmakers at the time of the communications, and so the protections of the attorney-client privilege never attached to those communications. In such a scenario the waiver argument advanced by the Chevron applicants is unavailing because, inasmuch as the communications were not protected by the attorney-client privilege, 268there was no risk of a litigant using the privilege as both a sword and a shield in an effort to gain an advantage in litigation, and thus there is no role for a court to play as arbiter of notions of “fairness.” . . .
For that reason, we are constrained to reverse the District Court’s December 20, 2010 order granting the Chevron applicants’ application for discovery pursuant to section 1782. Because we will reverse the Court’s order granting the applications, it is not necessary for us to address most of the other issues the parties raise on this appeal, including the applicability of the community-of-interest doctrine, and we decline to offer our views with respect to those issues as they would be mere obiter dictum. . . .
1.The “community-of-interest” (sometimes called “common interest”) doctrine referred to in the opinion is an exception to the doctrine of waiver. When parties to a litigation share a common interest, one party is allowed to share privileged information with attorneys for the other parties sharing the common interest without waiving the privilege. The Fourth Circuit has explained:
Whether an action is ongoing or contemplated, whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.20
2.Perhaps ironically, the fact that attorney-client conversations were carried out in the presence of third parties, rather than reported to them afterward—and were therefore unprivileged—preserved the attorney-client privilege for Kohn’s other attorney-client communications. Is that a rational result?
3.One category of information that has traditionally fallen outside the privilege involves basic information about the attorney-client relationship itself: the identity of the client, the size of the lawyer’s fee, the name of the person paying the fee if it is someone other than the client, and the fact that the attorney-client relationship exists. Furthermore, “matters existing in the public eye, such as a person’s appearance and handwriting, are generally not confidential communications because they were not exposed on the assumption that others would not learn of them.”21
4.In recent years, federal prosecutors have increasingly sought to subpoena attorneys in order to obtain such information. In particular, lawyers representing low-level participants in organized crime rings have been asked to reveal who is paying their fees and how much they are 269receiving. Such information can be useful in building a “net worth” case against organized crime bosses. (In a net worth case, the prosecution proves that the defendant has spent more money than his lawful sources of income can explain.)
Defense counsel complain that prosecutors are also using these subpoenas for harassment—in an effort to drive a wedge between them and their clients. Rule 3.8(e), which sets forth the special responsibilities of a prosecutor, responds to that complaint. It takes the position that prosecutors should:
(e)not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1)the information sought is not protected from disclosure by any applicable privilege;
(2)the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3)there is no other feasible alternative to obtain the information.
Does Rule 3.8(e) provide sufficient protection to criminal defendants?
5.Relying on the fact that the attorney-client privilege does not ordinarily protect client identity, courts have rejected claims of privilege to shield the names of clients who allegedly purchased illegal tax shelters.22 Do you agree that that information should not be privileged?
One rarely-used exception to the general rule occurs when identifying the client would be tantamount to revealing otherwise-privileged additional information. In the leading case, Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), a group of taxpayers instructed their attorney to make an anonymous payment of back taxes, presumably to improve their position in any subsequent criminal investigation. The Ninth Circuit held that the clients’ identities were privileged, because to reveal their identities would be tantamount to revealing the privileged information that they owed back taxes. As the Restatement § 69 cmt. g explains: “The privilege applies if the testimony [about the client] directly or by reasonable inference would reveal the content of a confidential communication.”
A pedestrian is killed in a hit-and-run automobile accident in which the identity of the driver is unknown. A few days later, an attorney representing the driver approaches the district attorney (DA) and states that his client will turn himself in provided that a favorable plea agreement can be worked out in advance. Instead, the DA subpoenas the attorney for purposes of obtaining information as to the client’s identity, and the attorney claims an attorney-client privilege. What results?
270References: Rules 1.6, 3.8, 8.4.
B.Justifications for the Attorney-Client Privilege
The rationale behind the attorney-client privilege is explicitly instrumental in character: Sealing the lawyer’s lips is a means of serving wider societal goals, not an end in itself. As McCormick summarizes it:
[T]he principal rationale of the privilege today rests upon three propositions. First the law is complex and in order for members of the society to comply with it in the management of their affairs and the settlement of their disputes they require the assistance of expert lawyers. Second, lawyers are unable to discharge this function without the fullest possible knowledge of the facts of the client’s situation. And last, the client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannot be compelled, over the client’s objection, to reveal the confidences in court. The consequent loss to justice of the power to bring all pertinent facts before the court is, according to the theory, outweighed by the benefits to justice (not to the individual client) of a franker disclosure in the lawyer’s office.23
This line of argument presumes that, without the privilege, candid disclosure from client to lawyer will be chilled; the adversary system will function less effectively, and societal interests in justice will be ill-served.
This justification for the privilege rests on the assumption that, without the assurance of confidentiality, clients would be unwilling to disclose compromising information to their lawyers. Is this assumption correct? Both public defenders and white-collar defenders report that clients are often unwilling to supply damaging facts even despite assurances of confidentiality. On the other hand, some defendants will tell their story to anyone with a seemingly sympathetic ear, even someone who will not be shielded by the privilege—police, cellmates, prison guards, or reporters.
Professor Fred Zacharias’s pioneering research on New York lawyers and clients produced a number of significant findings:
What accounts for these findings is not entirely clear. Perhaps confidentiality mattered to only 30 percent of the former clients because only 30 percent had sensitive information. Nevertheless, Zacharias’s survey raised questions about how often confidentiality is necessary and sufficient to avoid chilling client disclosures. A study of New Jersey lawyers found that the vast majority tell at least some of their clients about confidentiality. However, almost none inform their clients about the exceptions to confidentiality. Apparently, most lawyers fear that doing so will undermine the very trust they are trying to create.25
Even granting the background assumptions about client candor, the instrumental argument for the privilege is not self-evidently correct. Jeremy Bentham’s famous and forceful critique suggests why. (Bentham, one of the founders of utilitarianism, was also a celebrated jurist.)
Jeremy Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice
302–04, 309–11 (Garland Publishing, Inc. 1978; reprint, 1827).
English judges have taken care to exempt the professional members of the partnership from so unpleasant an obligation as that of rendering service to justice. . . .
When, in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court, might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not? Oh, because to betray a trust is treachery; and an act of treachery is an immoral act.
An immoral sort of act, is that sort of act, the tendency of which is, in some way or other, to lessen the quantity of happiness in society. In what way does the supposed cause in question tend to the production of any such effect? The conviction and punishment of the defendant, he being guilty, is by the supposition an act the tendency of which, upon the 272whole, is beneficial to society. Such is the proposition which for this purpose must be assumed. . . .
But if such confidence, when reposed, is permitted to be violated, and if this be known, (which, if such be the law, it will be), the consequence will be, that no such confidence will be reposed. Not reposed?—Well: and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray; let the law adviser say every thing he has heard, every thing he can have heard from his client, the client cannot have any thing to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be,—Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerting a false defence, as he may do at present. . . .
Thus much as to the case where the effect of the disclosure may be to subject the client to suffer as for an offence. Where the effect of it does not go beyond the subjecting him to some non-penal obligation to which he otherwise might not be subjected, or to debar him from some right of which he otherwise might have come into possession, or remained possessed,—the objection is no more reconcilable with the main object of the law than in the other case. In every such case, though by a process grievously and unnecessarily dilatory and expensive, what the law does, or to be consistent ought to do, is to compel each party, out of his own mouth, (or, to speak literally, by his own hand), to make disclosure of such facts as, lying within his own knowledge, are of a nature to contribute towards substantiating the claim of the adversary. Can there be any reason why that information, which he is compelled to give by his own hand, should not be obtained with equal facility from another hand, from which, if there be any difference, it may be extracted with less reluctance?
1.Wigmore summarizes Bentham’s argument thus: “It always comes back to this, that the deterring of a guilty man from seeking legal advice is no harm to justice, while the innocent man has nothing to fear and therefore will not be deterred.”26 How would you respond to this argument?
One response is to question whether deterring a guilty man from seeking legal advice, in fact, poses no harm to justice. Bentham seems to define justice as convicting the guilty. This definition focuses on outcomes but ignores fair process—or rather, it assumes that fair procedures are whatever result in correct outcomes. Do you agree? Quite apart from due 273process concerns, are there moral objections to convicting the guilty by deterring them from candid legal consultations?
2.Moreover, is it always true that “the innocent man has nothing to fear and therefore will not be deterred” from speaking openly to his attorney? What about cases in which individuals falsely believe that they are guilty, perhaps because they are unaware of available legal defenses (duress, necessity, self-defense, diminished capacity)? What about civil cases where an available defense (such as contributory negligence) is contingent on initially admitting fault, which defendants may be unwilling to do because they do not understand the defense? 27 Bentham might respond that such cases are infrequent, so that the gains to law enforcement of abolishing the attorney-client privilege outweigh the wrongful convictions. What is your view?
3.Bentham’s argument chiefly concerns criminal matters, in which a defendant will be found either guilty or not. But in civil disputes, as Wigmore notes, both sides may have bad facts they wish to keep secret. 28 However, Bentham was convinced that his argument was even stronger in civil lawsuits than in criminal cases, for in the civil case, the effect of abolishing the privilege is less harsh than in criminal cases: The penalty for losing does not include punishment. Is this persuasive?
4.Wigmore also suggests that Bentham’s proposal would have an adverse effect on the legal profession.
The consideration of “treachery,” so inviting an argument for Bentham’s sarcasms, is after all not to be dismissed with a sneer. . . . Certainly the position of the legal adviser would be a difficult and disagreeable one, for it must be repugnant to any honorable man to feel that the confidences which his relation naturally invites are liable at the opponent’s behest to be laid open through his own testimony. He cannot but feel the disagreeable inconsistency of being at the same time the solicitor and the revealer of the secrets of the cause. This double-minded attitude would create an unhealthy moral state in the practitioner.29
What is Wigmore’s basis for suggesting that abolishing the privilege would induce a more “unhealthy moral state” in practitioners than does obligating them to stay silent, perhaps against their will? 30
5.In State v. Macumber, 544 P.2d 1084 (Ariz. 1976), a client on his deathbed confessed to his lawyers that he had committed murders for which another man, William Wayne Macumber, was being tried. When the lawyers later attempted to testify about this confession on Macumber’s behalf, the prosecutor invoked the attorney-client privilege on behalf of the deceased client, contending that the attorney-client privilege remains intact after the 274client’s death. The trial judge agreed and rejected the lawyers’ proposed testimony. Macumber was convicted, and on appeal, the Arizona Supreme Court upheld the privilege’s invocation.31
The issue raised in Macumber reemerged dramatically during the 1994 Whitewater investigation of President Bill Clinton and Hillary Rodham Clinton. (Whitewater was a dubious Arkansas real estate venture in which the Clintons had invested years earlier.) During that investigation, the Independent Counsel attempted to compel testimony from a law firm that had represented Vincent Foster. Foster, a White House aide, had committed suicide, and the special prosecutor wished to learn what Foster had told attorneys that may have been relevant to Whitewater inquiries. The D.C. Circuit held that the importance of the ongoing federal criminal investigation outweighed the importance of maintaining the attorney-client privilege after the client’s death. In re Sealed Case , 121 F.3d 729 (D.C. Cir. 1997) . The Supreme Court reversed. In the Court’s view, “knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.” Swidler & Berlin v. United States , 524 U.S. 399, 407 (1998) . The Court reaffirmed the traditional contours of the common-law attorney-client privilege, and rejected attempts to limit the privilege by balancing it against other concerns. Justice O’Connor’s dissenting opinion argued that the privilege should yield in the face of compelling law enforcement needs, such as when information may be necessary to exonerate an innocent defendant.
6.In a case profiled on a CBS 60 Minutes episode, the defendant Alton Logan languished in prison for twenty-six years because two attorneys, who knew that he was innocent, did not reveal their knowledge because it was based on privileged information from their client, who committed the crime. The client told them that he committed the offense, and appeared gleeful that someone else was convicted for it. After their client died, the attorneys came forward. They acknowledged that they would have disclosed the information earlier if Logan had been sentenced to death. Logan stated in the televised interview that a sentence to life in prison is a kind of living death. 32 If you had been one of the attorneys, what would you have done? 33
7.As noted above, in Swidler & Berlin, the Supreme Court rejected attempts to limit the privilege by balancing it against other concerns. The 275only well-established line of cases that permits such balancing involves the so-called “corporate fiduciary exception” to the privilege in stockholder derivative suits.34 The leading case is Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), which considered whether shareholders in a derivative action should have access to otherwise-privileged communications between management and corporate attorneys. Rather than declaring the privilege absolute, Garner held that courts must balance the benefits of disclosure against the costs. Courts that follow Garner generally note that the parties seeking privileged information are stockholders of the corporation, who thus have some claim to being the corporate attorneys’ “real” clients. Since management-defendants owe fiduciary obligations to these shareholders, the latter have a specially protected interest in obtaining sufficient information to ensure that such obligations are met. Thus, these cases do not represent genuine exceptions to Swidler & Berlin’s no-balancing approach.
The issue of whether the privilege should be balanced against other societal concerns is fundamental to its justification. If the justification of the privilege is basically utilitarian, it seems appropriate to weigh its objectives against other utilitarian ends. If, on the other hand, the justification rests on non-utilitarian values, such as respecting the rights and dignity of the client, the Supreme Court’s no-balancing framework of Swidler & Berlin seems appropriate. Which approach makes the most sense to you? Where should the rights and dignity of non-clients figure in this analysis? Does the Court’s ruling in Swidler & Berlin imply that Macumber correctly decided the privilege issue?
8.Ultimately, Bentham’s argument against the attorney-client privilege is that it defeats justice by allowing wrongdoers to hide guilty facts with the assistance of a lawyer. When all else is said, how strong is Bentham’s point?
C.The Crime-Fraud Exception to the Attorney-Client Privilege
The most significant exception to the attorney-client privilege arises when a client attempts to use an attorney’s services to further a crime or fraud. Why the crime-fraud exception? Historically, many courts explained that when clients have misconduct in mind, they are not consulting attorneys in their professional capacity—as officers of the court—and thus no attorney-client relationship has formed. 35 Yet this argument seems artificial: It implies that the attorney-client relationship switches on and off as the conversation shifts from honest to dishonest topics. There are other, more straightforward, rationales for the crime-fraud exception. The purpose of the attorney-client privilege is to 276 encourage clients to obtain legal advice that will facilitate their compliance with legal obligations or their vindication of legal rights. Such objectives do not encompass client efforts to violate the law. In Justice Cardozo’s words, “the privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.” Clark v. United States , 289 U.S. 1, 15 (1933) .
The crime-fraud exception has three primary conditions. First, a client’s intent to commit a crime or fraud is enough to create the exception, regardless of whether the client believes the act to be a crime or fraud, even if the client forms the wrongful intent after the lawyer-client conversation, and even if the client does not actually succeed in accomplishing the wrongful purpose. 36 Paul Rice, the author of a treatise on the attorney-client privilege, justifies the position as follows:
The client’s communications should not retroactively be afforded the protection of the privilege simply because . . . , as a result of some fortuity, [he] did not have an opportunity or was unable to accomplish his illegal end. The wrong is the seeking of legal advice with the improper motive. If that is established, the client is not innocent. 37
Second, it is the client’s intent to commit crime or fraud that is relevant, not the lawyer’s. The crime-fraud exception applies even if the lawyer has no knowledge of the client’s illicit motive. Conversely, if the client has no criminal or fraudulent intent, the attorney-client privilege remains applicable even if the attorney’s intentions are wrongful.
Consider, for example, the following scenario: A client tells his counsel something false, and the counsel, believing it to be true, repeats it to a federal official. Making false statements to the federal government is a felony (under 18 U.S.C. § 1001 ), and the client intended to deceive even though the lawyer did not. Although this scenario is probably something that every white-collar defense lawyer has experienced more than once, it is an open-and-shut case where the crime-fraud exception applies. One high-profile example of this pitfall arose during Special Counsel Robert Mueller’s investigation of alleged connections between the Trump campaign and Russian interference in the 2016 election. The (unnamed) targets in this particular case were campaign aides Rick Gates and Paul Manafort. 38 The court, finding that the attorney had passed along false information from them to the government, found that 277 the case triggered the crime-fraud exception. The court compelled the attorney to answer several factual questions regarding communications with the clients. Gates was convicted of false statements, while Manafort pled guilty to other crimes.
Third, the exception applies only to conversations that are in furtherance of the crime or fraud. Thus, discussion of ongoing or future crimes and frauds are usually subject to the crime-fraud exception, but professional conversations about a client’s past misconduct usually remain protected. Usually, but not always: A conversation about how to cover up a past crime or fraud may be in furtherance of it, while a conversation in which the lawyer successfully dissuades the client from an intended crime or fraud is clearly not in furtherance of it.
In distinguishing between “past,” “ongoing,” and “future” events, the baseline is the time that the communication took place, not the time when the client asserts the privilege. If clients consult attorneys in furtherance of a crime or fraud before or during its commission, the conversation is unprivileged, and remains so, even after the unlawful act is complete. 39
The crime-fraud exception is relevant only after the attorney-client privilege is successfully invoked. Once it is, the party attempting to pierce the privilege bears the burden of proving that the crime-fraud exception applies. What does that burden entail? Generally, “[t]here must be a showing of a prima facie case sufficient to satisfy the judge that the light should be let in.” 40 Courts disagree, however, about what, specifically, suffices—and the struggle makes sense, as many litigants won’t be able to prove the existence of a fraud without the documents they seek, but, on the other hand, the privilege would “quickly evaporate” if the mere allegation of a fraud triggered the exception. 41 Attempts to chart a middle course have yielded a common threshold: In order to invoke the crime-fraud exception, the moving party must present enough evidence that, “if believed by the trier of fact would establish the elements of an ongoing or imminent crime or fraud.” 42 Or, as a leading treatise explains:
Before the opponent can open up attorney-client communications to judicial scrutiny, he must show more than a suspicion of crime and produce more than allegations of fraud. However, since at this stage his proof must be by independent evidence, he need not prove the crime by proof beyond a reasonable doubt or put on a prima facie case of fraud. He need only make a prima facie showing of the preliminary facts of the exception; namely, that the services of the lawyer or the 278 communications in question were made to further some future wrongful purpose. The test resembles that used for search warrants or directed verdicts in that the judge’s function is not to determine issues of credibility or whether a particular inference should be drawn, but rather to see what conclusions could be reached if the witnesses were credited and the permissible inferences drawn. 43
Further, the Supreme Court clarified in United States v. Zolin, 491 U.S. 554 (1989), that when a party attempts to pierce the privilege by invoking the crime-fraud exception, part of its case that the crime-fraud exception applies may include the contested document itself, reviewed in camera by the judge.44 To obtain in camera review, the party supporting the applicability of the crime-fraud exception “must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.” 491 U.S. at 574–75. This, the Court states, is “a lesser evidentiary showing . . . than is required ultimately to overcome the privilege.” Id. at 572.
Consider the case below, one of the most consequential cases involving the crime-fraud exception.
A Case Study of the Crime-Fraud Exception: The Minnesota Tobacco Litigation
The crime-fraud exception was crucial in the massive tobacco litigation of the 1990s, which eventually resulted in a multi-billion dollar settlement between tobacco companies and state governments, which sued to collect the healthcare costs for smoking-related illnesses that states had borne for decades.
From the 1950s to the 1990s, tobacco companies were frequently sued by individuals over smoking-related illnesses, but the companies never lost a case. In part, this was because juries regularly regarded smoking as chosen, voluntary behavior, but it was also because for much of this period the industry succeeded in casting doubt on the causal connection between smoking and illnesses. One industry tactic involved creating a research institute that funded studies of the health effects of smoking. In reality, the institute made public only those studies that supported the industry’s claim of no causal connection between smoking and illness; studies showing the opposite were suppressed. To help protect the secrecy of its studies, scientists submitted the studies to tobacco industry lawyers, who asserted attorney-client privilege to resist disclosing them. In one case, U.S. District Judge H. Lee Sarokin reviewed documents in camera, and concluded as follows:
279Despite the industry’s promise to engage independent researchers to explore the dangers of cigarette smoking and to publicize their findings, the evidence clearly suggests that the research was not independent; that potentially adverse results were shielded under the caption of “special projects;” that the attorney-client privilege was intentionally employed to guard against such unwanted disclosure; and that the promise of full disclosure was never meant to be honored and never was.45
The full disclosure of these documents finally came a few years later, in the tobacco litigation of the 1990s. Unlike the personal injury cases, here the plaintiffs were states suing tobacco companies for healthcare costs.
The case that finally pierced the attorney-client privilege on industry documents was the State of Minnesota’s suit against seven tobacco companies. The state argued that certain categories of documents were not privileged in the first instance, and that others fell under the crime-fraud exception. One important precedent was the prior application of the crime-fraud exception in products liability litigation about the Dalkon Shield IUD. As noted in Problem 3 in Chapter IV, the Shield caused thousands of injuries. When reports of medical problems began to emerge, manufacturer A. H. Robins Corporation directed its research scientists to report their findings on safety to the company’s lawyers, rather than executives or doctors, in order to shield them behind the attorney-client privilege. During subsequent litigation, the court found a prima facie case of the crime-fraud exception.46
Minnesota’s strategy in the tobacco litigation succeeded brilliantly. In total, Minnesota would eventually compel the production of millions of pages of documents from all defendants. The break in the case came when one defendant decided to settle separately with the state. It agreed to waive privilege on crucial documents. The state leveraged these to establish a prima facie case of crime-fraud that defeated the privilege asserted by the other defendants.
The trial court agreed that there was a prima facie case of fraud.47 It cited to extensive documentary evidence, including:
The court further criticized the tobacco industry for using the attorney-client privilege as both a “shield” and a “sword,” by disclosing only favorable findings while hiding unfavorable ones.
1.One controversial issue concerning these disclosures arose because the sheer number of documents (about 35 million) was so enormous that the special master could not possibly examine them all in camera to determine whether they were privileged—the judge calculated that doing so would take the special master more than six years, doing nothing but reading documents 2000 hours per year. Instead, the court approved a technique of “sampling” documents from different categories and then making a privilege determination for all documents in the category. 49 Inevitably, some privileged documents were revealed. The sampling procedure was intensely controversial. “This is completely and utterly without precedent,” claimed counsel to Brown & Williamson. “You can’t even find sweepings in the corners of law libraries to suggest that this is appropriate.” 50 Jones Day litigation chairman John Strauch agreed: “I can’t think of a worse system for something as important as attorney-client privilege.” 51 Given the practicalities, was there any feasible alternative to the sampling technique?
2.The tactic of channeling sensitive information through lawyers to protect it from discovery is sometimes nicknamed “information laundering.” If a scientist—or, more generally, any corporate employee—reports information directly to management, their communications are not privileged. But if the employee reports the same information to counsel, that conversation is arguably privileged; so is the conversation when counsel passes along the information to management. Inserting counsel between the parties “launders” the information, turning discoverable information into privileged information.
3.One upshot of the Dalkon Shield and Minnesota tobacco cases is that, under some circumstances, information laundering signifies fraudulent intent, in which case the crime-fraud exception pierces the privilege and defeats concealment. What are those circumstances? In both examples, the alleged fraud consisted of the tobacco industry reassuring the public that it was studying the health issues in good faith, when in fact it was burying the truth. What if the companies hadn’t lied to the public? Might it be argued 281that setting up an information laundering system is itself sufficient to trigger the crime-fraud exception? Alternatively, might it be argued that laundering information through counsel does not create an attorney-client privilege in the first place, if the purpose is to conceal information rather than to obtain legal advice?
4.Channeling information through counsel in order to protect it remains a common practice; the general counsel of a major food corporation reports that the decision whether to do so is one that in-house lawyers confront on a regular basis.52
Conversations in furtherance of a crime or fraud are unprivileged. But what constitutes a fraud? Many frauds are crimes, specified as such by statute. Thus, for example, frauds are defined in ninety-two federal criminal statutes.53 But the phrase “crime or fraud” makes it clear that the exception applies to civil conduct as well as criminal conduct, and the boundaries of civil fraud are murkier.
Connecticut Superior Court
565 A.2d 1368 (1989).
n Opinion by Freedman , Judge .
[The plaintiff wife filed for divorce and received temporary custody of the couple’s two minor children. Without permission from the court, she took the children to Spain. The court found her in contempt, granted the divorce in a hearing that she did not attend but in which she was represented by counsel, and awarded custody of the children to the defendant husband. The plaintiff’s attorney acknowledged that she knew her client’s location, and the husband moved to compel the attorney to divulge this information. The court notes that Wigmore’s standard formulation of the attorney-client privilege, set out in Section A, supra , has been adopted by Connecticut courts.].
Subsection (c)(2) of Rule 1.6 of the Rules of Professional Conduct provides that a lawyer may reveal information relating to the representation of a client to the extent that the lawyer believes that it is necessary to “[r]ectify the consequence of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.” Rule 3.3(a)(2) of the Rules of Professional Conduct states that “[a] lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . .”
282It is the opinion of this court that the plaintiff’s willful contempt in leaving the country in violation of the court’s order constitutes a fraud on the court, a fraudulent act under Rule 1.6(c)(2). While it is clear to this court that the plaintiff’s attorney did not assist or advise the plaintiff to violate the court’s order, the attorney’s present refusal to disclose her client’s whereabouts does serve to assist the plaintiff in her ongoing violation of the court’s order.
The New Jersey Supreme Court in Fellerman v. Bradley, 493 A.2d 1239 (1985), stated that in the context of the “crime or fraud” exception to the attorney-client privilege . . . , “our courts have generally given the term ‘fraud’ an expansive reading.” In Fellerman, the failure of the defendant’s attorney to disclose the whereabouts of his client prevented the court from enforcing a provision of the final judgment in a dissolution action, to which the defendant had previously agreed, requiring the defendant to pay an expert’s fee. The court stated that “the client, through his attorney, attempted to perpetrate a fraud on the court—to ‘mock’ justice—by consenting to and subsequently flouting a judgment that obligated him to bear the costs of an accountant.”
The situation in the present case presents more compelling facts than those in Fellerman to justify the expansion of the meaning of fraud in Rule 1.6(c)(2) beyond traditional tort or criminal law definitions to include those which constitute “a fraud on the court.” The court in Fellerman concluded that the defendant’s attempt to escape payment of a court ordered expense constituted a fraud on the court. The plaintiff’s deliberate violation of the court’s order in the present case has extended ramifications because it impedes the court’s ability to implement its subsequent orders regarding custody, orders made in the best interests of the two minor children, not in the interests of either the plaintiff or the defendant. . . .
[The court next reviews similar decisions from New York, Missouri and Washington.]
This court, mindful of the importance of the attorney-client privilege and the function it serves in our adversary system, must nevertheless weigh the benefits of that privilege against the state’s vital interest as parens patriae in determining the best interests of the minor children. While the plaintiff would have this court hold that the issue before it does not involve custody, the issue of custody here is inextricably intertwined with the issue of attorney-client privilege. The facts reveal: (1) that the plaintiff has left the country with the children in direct violation of a court order; (2) that the plaintiff’s attorney knows the precise whereabouts of her client and declines to disclose that information; (3) that the failure to disclose that information assists the plaintiff in her ongoing contempt of the court’s order; and (4) that the court’s ability to effectuate subsequent orders issued in the best interests of the children has been thwarted.
283It is this court’s opinion, that, under the circumstances, the attorney-client privilege does not apply to information imparted to an attorney by a client in the course of perpetrating a fraud on the court. Moreover, any claim of privilege must yield in these circumstances to the best interests of the children. Accordingly, the defendant’s motion to compel counsel to reveal the whereabouts of the plaintiff and the children is granted.
1.What is the court’s rationale for denying the plaintiff’s claim of privilege? Is it that the “privilege must yield . . . to the best interests of the children,” or that “the plaintiff’s willful contempt in leaving the country in violation of the court’s order constitutes a fraud on the court” and thus creates the crime-fraud exception? The first theory seems too broad: It virtually eliminates the attorney-client privilege in cases involving the wellbeing of minor children. The second theory is also very broad: It seems to imply that any violation of a court order constitutes a fraud on the court. A third possibility is that violating a court order contrary to the best interests of minor children constitutes a fraud on the court. What might be the rationale for this more limited theory? Is it relevant that a Department of Justice (DOJ) report estimated that about 204,000 children are abducted annually by family members?54
2.Definitions of “fraud” abound:
In line with Wolfram’s formulation, some courts have extended the crime-fraud exception to encompass abuse of the attorney-client relationship to commit torts, as well as crimes or frauds.57
Does Wolfram’s formulation apply in Bersani ? Under Rule 1.0(d)’s characterization of fraud, was Ms. Bersani engaged in fraud by refusing to reveal her location? Considering Black’s Law Dictionary , the absent wife in Bersani is concealing a material fact: her location and that of her children. But where is the second element, inducement to act?
3.In an influential opinion, the D.C. Circuit held that the crime-fraud doctrine applies in the context of a “crime, fraud, or other type of misconduct fundamentally inconsistent with the basic premises of the adversary system.” 58 Is this broader or narrower than Wolfram’s formulation? Does it apply in Bersani ?
You represent a client accused of violating anti-spamming laws. On April 10, your client asks you whether, if he lists last year’s profits from his computer activities on his current federal income tax return, the information might be used as evidence against him in the anti-spamming case. You answer that it might indeed, although you are certainly not recommending that he fail to report income. He changes the subject and does not mention his taxes again.
A few months after the April 15th income tax filing date, the government convenes a grand jury to investigate possible income tax evasion by your client, based on the fact that his federal tax return lists no income from his computer activities. The federal prosecutor subpoenas you to testify about any conversations you had with your client about his federal income tax prior to April 15th. You assert the attorney-client privilege, based on the fact that your conversations with your client concerned his defense against the anti-spamming charges. In response, the prosecutor argues that the crime-fraud exception applies.
Is the conversation privileged? What evidence might the prosecutor offer to establish the crime-fraud exception? What evidence might you offer in response?
2.The “War on Terror” and the Attorney-Client Privilege
Less than two months after the September 11, 2001 terrorist attacks, the DOJ published an amendment to federal regulations pertaining to prison inmates who may be terrorists. The amended regulation states:
285In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall . . . provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.
. . .
(2)Except in the case of prior court authorization, the Director, Bureau of Prisons, shall provide written notice to the inmate and to the attorneys involved, prior to the initiation of any monitoring or review under this paragraph (d). The notice shall explain:
(i)That . . . all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;
(ii)That communications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.
(3)The Director, Bureau of Prisons, with the approval of the Assistant Attorney General for the Criminal Division, shall employ appropriate procedures to ensure that all attorney-client communications are reviewed for privilege claims and that any properly privileged materials (including, but not limited to, recordings of privileged communications) are not retained during the course of the monitoring. To protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a privilege team shall be designated, consisting of individuals not involved in the underlying investigation. The monitoring shall be conducted pursuant to procedures designed to minimize the intrusion into privileged material or conversations. Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not 286 disclose any information unless and until such disclosure has been approved by a federal judge. 59
Although it appears that the special measures option is rarely invoked, the Obama administration continued to defend it when challenged in court. 60
An ABA task force strongly opposed these regulations. The task force insisted that monitoring would unduly chill essential conversations between attorneys and their clients. The task force also argued that the regulations violate a federal statute requiring that federal detainees “be afforded reasonable opportunity for private consultation with counsel.” 61 In addition, in the task force’s view, the privilege team (which it refers to as the “taint team”) would, in reality, provide no protection of privileged conversations:
Existing case law . . . clearly establishes that when an inmate makes telephone calls over a telephone line that he or she knows is monitored, the necessary expectation of confidentiality is lacking and the calls therefore do not qualify as privileged ab initio. . . . Thus, under established case law, the taint team would have legal support for finding that none of the recorded attorney-client consultations they are called upon to review fall within the scope of the privilege, because the requisite expectation of confidentiality is lacking. And even if the government is willing to foreswear taking such an approach, there is nothing to prevent co-defendants, defendants in related cases, or private plaintiffs, for example from maintaining that these conversations were unprivileged and should be discoverable, either by subpoenaing the tapes or by subpoenaing the attorney involved. Indeed, where a taint team learns information in the course of monitoring an interview that may exculpate another individual, the government will be required—under Brady v. Maryland, 373 U.S. 83 (1963)—either to disclose that exculpatory information to the interested party or to dismiss the relevant criminal charges against that individual.62
The ABA task force accordingly concluded that the regulation interferes with vital Fifth and Sixth Amendment rights. 63
2871.How useful is the regulation likely to be in deterring terrorists? How much is it likely to interfere with candid attorney-client conversations?
2.The regulation states: “[C]ommunications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts.” Is this a correct statement of the crime-fraud exception? Can a communication facilitate criminal acts without the client intending the conversation to further those acts? Suppose the conversation is about taking the Fifth Amendment when the client is asked to name names of individuals who may be conspiring to commit criminal acts.
3.The regulation permits secret taping of attorney-client conversations in prison, without notification, if a federal judge approves it. Such secret taping occurred in Lynne Stewart’s conversations with Sheik Abdel Rahman (see Chapter 4). The regulation also permits the privilege team to reveal privileged information if a judge so orders. Are these provisions justified?
4.The ABA fears that review of tapes by a privilege team will not protect any attorney-client conversations because no conversations that occur while the parties know they are being taped will be protected in the first place. Is this realistic? In United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003), the Eighth Circuit held that taped prison conversations between inmates and their attorneys are not privileged, “[b]ecause [since] the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private.” In the court’s view, the “presence of the recording device was the functional equivalent of the presence of a third party.”
5.In 2013, a Staff Judge Advocate confirmed allegations by Guantánamo defense counsel that privileged and confidential attorney-client conversations had regularly been monitored through secret microphones disguised as smoke detectors in interview rooms. 64 Previously, defense counsel had been assured that no such monitoring was taking place. The problem recurred in 2017, leading to a dramatic legal ethics confrontation when capital defense counsel withdrew from their case on the ground that they could not count on a secure space to speak with their client. The government responded that a microphone defense counsel had discovered in a client interview room was merely a “legacy microphone” no longer in use— 288 an assertion that defense counsel disputed. 65 The military judge sided with the government and ordered defense counsel back to work. But then information emerged that the judge had been secretly negotiating with the Justice Department for a post-retirement job. Accordingly, the D.C. Circuit Court of Appeals vacated all his rulings dating back to November 2015, when his job negotiations began. 66 That included his finding about the “legacy microphone” and his order to defense counsel. There have been no new developments in the case since then. (We include an extended case study of this multiple-issue Guantánamo ethics imbroglio in the separate set of case studies accompanying this book.)
D.The Attorney-Client Privilege: Organizational Clients
In one sense, the issues surrounding the attorney-client privilege are no different when the client is an organization than when the client is a natural person. In both situations, the objective is to promote full and frank communication between lawyers and clients, which is necessary to ensure loyalty, trust, and competence in professional practice. In another sense, however, the differences between an individual, natural person as client and an artificial person composed of many individuals raise unique questions that affect both the scope and the rationale of the privilege.
1.The Organizational Privilege: The Basics
A fundamental principle of representing an organization is that professional obligations run to the entity itself, not to any of its officers, directors, or employees. 67 Obviously, the organization speaks through management, but no member of management is “the client” of the organization’s lawyer. This raises questions about which communications between a lawyer and the organization’s officers and employees lie within the attorney-client privilege. Whose confidences must be kept? And from whom?
If, for example, a corporation’s CEO tells the lawyer in confidence that he has committed acts constituting embezzlement, the lawyer’s fiduciary duties clearly run to the corporation, not the CEO. Counsel must therefore inform the board of directors of the embezzlement. Yet the situation remains one of some delicacy, because the CEO may have been relying on the lawyer’s duty of confidentiality. For this reason, Rule 1.13(f) states:
In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the 289 organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
In effect, the lawyer must issue warnings to corporate officers and employees if it is clear that they are communicating information that cannot be held in confidence. As illustrated in the Spanier case in the materials that follow, confusion over this issue can have ruinous effects.
Another thorny issue involves which employees and agents of the organization personify the client for purposes of the privilege. For many years, courts employed two different approaches in identifying the client for purposes of the attorney-client privilege. One approach restricted the privilege to conversations between the corporation’s lawyer and members of its “control group,” that is, senior management. 68 The alternative “subject matter” test originated in Harper & Row Publishers, Inc. v. Decker , and was elaborated as a five-part test in Diversified Industries, Inc. v. Meredith :
[T]he attorney-client privilege is applicable to an employee’s communication if (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee’s corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents. We note, moreover, that the corporation has the burden of showing that the communication in issue meets all of the above requirements. 69
In the following decision, the Supreme Court addressed the question of which employees’ conversations with lawyers are covered by the organizational privilege and rejected both the previous tests. In the case, auditors working for Upjohn, a pharmaceutical manufacturer, discovered that one of the company’s subsidiaries had made illegal payments to foreign officials in return for government business. Gerard Thomas, Upjohn’s general counsel, began an internal investigation that included employee interviews and questionnaires. In 1976, Upjohn voluntarily reported on the illegal payments to the SEC and the Internal Revenue Service (IRS). The IRS began its own investigation, and demanded that Upjohn produce the questionnaires and Thomas’s interview notes. Upjohn refused the discovery request on the grounds of attorney-client privilege. Relying on the “control group” test, the District Court rejected the claim of privilege. The Sixth Circuit supported the District Court and 290 remanded for determination of who was in Upjohn’s control group. Upjohn appealed to the Supreme Court.
Supreme Court of the United States
449 U.S. 383, 386–92, 394–96 (1981).
n Mr. Justice Rehnquist delivered the opinion of the Court.
We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context. . . . With respect to the privilege question the parties and various amici have described our task as one of choosing between two “tests” which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure. . . .
II
Federal Rule of Evidence 501 provides that “the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.” The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client. . . .
The Court of Appeals, however, considered the application of the privilege in the corporate context to present a “different problem,” since the client was an inanimate entity and “only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole.” . . . Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. . . .
In the case of the individual client the provider of information and the person who acts on the lawyer’s advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below—“officers and agents . . . responsible for directing [the company’s] actions in response to legal advice”—who will possess the information needed by the corporation’s 291lawyers. Middle-level—and indeed lower-level—employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. This fact was noted in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (C.A.8 1978) (en banc):
In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem is thus faced with a “Hobson’s choice.” If he interviews employees not having “the very highest authority,” their communications to him will not be privileged. If, on the other hand, he interviews only those employees with “the very highest authority,” he may find it extremely difficult, if not impossible, to determine what happened.
The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney’s advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy. . . .
The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, “constantly go to lawyers to find out how to obey the law,” particularly since compliance with the law in this area is hardly an instinctive matter. . . .2
The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. . . . The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were 292 being questioned in order that the corporation could obtain legal advice. . . . Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad “zone of silence” over corporate affairs. Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney. . . .
Here the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner’s internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner’s attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S. at 516: “Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary.”
1.Though the Court repudiates the control group test, it “decline[s] to lay down a broad rule” and proposes a case-by-case determination of the scope of the privilege. Does the decision offer sufficiently concrete guidance to corporate attorneys or employees as to whether their conversations are protected?
The Upjohn majority stresses that the disclosures at issue came from employees who were acting like clients in a crucial respect: informing attorneys about the case. The Court concludes that the attorney-client privilege must therefore protect communications with any corporate employees from whom the attorney must obtain information for purposes of the representation. How, if at all, does this differ from the subject matter test?
2.How does the Court’s framework compare with the Restatement (Third) of the Law Governing Lawyers § 79 , which protects communications between any agent of the organization and the organization’s lawyer “concern[ing] a legal matter of interest to the organization” if “disclosed only to: (a) privileged persons . . . ; and (b) other agents of the organization who reasonably need to know of the communication in order to act for the organization”?
2933.Why do organizations get the benefit of the attorney-client privilege at all? As Section B suggests, the most common argument for the attorney-client privilege is that it encourages frank disclosures. The assumption is that, with the privilege in place, the client has little to fear in disclosing sensitive information; without the privilege, on the other hand, lawyer-client communication would be chilled and circumscribed.
But how realistic are those assumptions when the attorney is investigating possible wrongdoing by a corporate employee? Management, after all, is very likely to sanction, fire, or sue an employee who has landed the company in legal difficulties. And if the lawyer interviewing an employee warns that the corporation has sole discretion to waive or assert the privilege, how comfortable will employees feel in discussing possible misconduct? At the same time, in at least some cases, employees or officers will have to consult with counsel irrespective of the privilege because their jobs depend on it or because such consultation can later shield them from liability through the “advice of counsel” defense.70
Then, while the utilitarian justification for the attorney-client privilege is arguably weaker when the client is an entity, rather than an individual, the social costs of extending the privilege are arguably greater. As one of the earliest commentators on the corporate attorney-client privilege explained:
[W]here corporations are involved, with their large number of agents, masses of documents and frequent dealings with lawyers, the zone of silence grows large. Few judges—or legislators either, for that matter—would long tolerate any common law privilege that allowed corporations to insulate all their activities by discussing them with legal advisors.71
Meanwhile, in addition to the above utilitarian justification, the attorney-client privilege is often, generally, justified based on the need to protect individual rights such as privacy and freedom from self-incrimination. But like the utilitarian rationale, non-utilitarian arguments for the attorney-client privilege carry considerably less weight when the client is an organization instead of an individual. As Charles Wolfram writes, “arguments [for the corporate privilege] based on human dignity are irrelevant. The corporation as an entity has no legal or moral claims to dignity. The humans who act as the agents of the corporation are entitled to such dignity, but individually they are not the client.”72
If the typical justifications are doubtful, how else might the corporate attorney-client privilege be justified?
One possible justification, somewhat different from Upjohn’s, proceeds in four steps: (1) Without extensive protection for lawyer-client communication, corporate counsel will be cut “out of the loop”—employees and management will withhold sensitive information from legal advisers. (2) 294In that case, attorneys will be unable to counsel their clients in order to prevent illegal behavior. (3) A significant part of a corporate attorney’s role includes attempting to prevent misconduct. (4) Clients are often willing to be dissuaded from improper activities by their attorneys, for if they were not, they would not seek costly legal advice in the first place.73 The conclusion is that a broad attorney-client privilege enhances corporate compliance with legal standards.
Do you find this argument persuasive? Are any steps of the syllogism questionable?74 Do you believe that the attorney-client privilege is justified, when applied to organizations rather than individuals?
4.Critics of Upjohn have claimed that giving a broad scope to the corporate attorney-client privilege will turn corporate attorneys into “black holes” of information. Attorneys investigating corporate internal affairs on behalf of management may well be the only corporate officers with a full and clear picture of the matter being investigated. All the attorneys’ conversations on the subject are privileged, including conversations in which they report to management the findings of their internal investigation, and thus the total picture drops into a black hole. Information goes in, but it never comes out.
Consider the Dalkon Shield and tobacco cases, discussed in Part C, supra. Recall that research scientists working for the Dalkon Shield’s manufacturer were directed to report their findings on safety to the company’s lawyers, rather than executives or doctors, in order to shield those findings behind the attorney-client privilege. Tobacco research was similarly channeled through industry lawyers, who then claimed that it was protected by the privilege—a black hole that lasted for decades. To critics, Upjohn’s broad protection for corporate communications assists such “information laundering” cover-ups of corporate wrongdoing and impedes regulatory oversight. Do the Supreme Court’s arguments persuade you otherwise?
Superior Court of Pennsylvania
132 A.3d 481, 481–87, 490, 496–98 (2016).
n Bowes, J.:
Graham B. Spanier appeals from the order denying his pre-trial motions to preclude the introduction of testimony of Cynthia Baldwin and quash certain criminal charges against him based on violations of the attorney-client privilege. We find that Ms. Baldwin breached the attorney-client privilege and was incompetent to testify as to confidential communications between her and Spanier during her grand jury testimony. Accordingly, we reverse the trial court’s determination 295otherwise, and quash the charges of perjury, obstruction of justice, and conspiracy related to those counts.
The Commonwealth has charged Spanier with perjury, failure to report suspected child abuse, obstruction of justice, and conspiracy to commit perjury, conspiracy to commit obstruction of justice, conspiracy to commit endangering the welfare of a child (“EWOC”), and two counts of EWOC. The charges stem from: 1) his treatment of allegations of sexual misconduct against Gerald “Jerry” A. Sandusky, the former defensive coordinator for the Penn State football team and founder of a non-profit charity serving underprivileged youth, the Second Mile; 2) his testimony pertaining to his handling of those matters before an investigating grand jury, and 3) the testimony of Cynthia Baldwin.
Spanier is the former President of the Pennsylvania State University (“Penn State” or “University”). In 2009, the Pennsylvania Office of Attorney General (“OAG”) began investigating allegations that Sandusky sexually abused children over an extended period. As part of the investigation, the OAG convened a statewide investigating Grand Jury. During the course of the investigation, the OAG learned of sexual misconduct by Sandusky that occurred while he was on the campus of Penn State in 2001, as well as an incident involving inappropriate behavior with a minor in 1998. . . .
As part of the criminal investigation into Sandusky, . . . Ms. Baldwin was served with a subpoena duces tecum, Grand Jury Subpoena 1179, for University documents referencing or related to Jerry Sandusky after 1997. . . .
Spanier was summoned to testify before the grand jury on April 13, 2011. . . . Prior to Spanier’s April testimony, but on the same day of that testimony, Ms. Baldwin objected to the scope of Subpoena 1179 before Judge Barry Feudale, the grand jury supervising judge.
After she left the room, and outside of Spanier’s presence, the OAG represented to Judge Feudale that [there were inconsistencies between statements by various Penn State officials including Spanier]. Hence, it was clear at that point to both Judge Feudale and the OAG that the grand jury was investigating the actions of high-ranking Penn State officials, including . . . Spanier.
During this exchange, Judge Feudale referred to Ms. Baldwin as counsel for Spanier . . . .
Subsequently, after discussions regarding compliance with the Subpoena 1179 were coming to a close, Judge Feudale inquired, “Cindy [Baldwin], just for the record, who do you represent?” Outside the presence of Spanier, and for the first time on the record, Ms. Baldwin responded, “The university.” Judge Feudale followed up, “The university solely?” Ms. Baldwin answered, “Yes, I represent the university solely.” . . .
296Despite Ms. Baldwin’s earlier averment that she solely represented the University, Judge Feudale did not colloquy Spanier regarding the scope or type of representation he was being afforded by Ms. Baldwin. Additionally, the OAG did not express concern over Ms. Baldwin being present for Spanier’s testimony. Upon entering the grand jury room, the OAG queried, “Sir, you’re represented by counsel today?” Spanier responded, “Yes.” The OAG then asked, “Could you just identify counsel?” Spanier answered, “Cynthia Baldwin sitting behind me.” . . .
[Subsequently, Baldwin herself was called to testify before the grand jury.]
In preparation for Ms. Baldwin’s grand jury appearance, Judge Feudale conducted a conference with Mr. Mustokoff, the OAG, and Ms. Baldwin’s attorney on October 22, 2012. Due to the secrecy attendant to grand jury proceedings, Spanier was not aware that Ms. Baldwin was going to testify and could not lodge any objection. New counsel for [University officials] Curley and Schultz already had provided letters to the OAG, Judge Feudale, and counsel for Ms. Baldwin, invoking the attorney-client privilege.
Counsel for Penn State astutely noted that it could not waive any privilege that Curley and Schultz might have and again declined to waive its privilege as to communications between Ms. Baldwin and Curley and Schultz. The OAG, via Attorney Frank Fina, submitted at that time that it would not question Ms. Baldwin about matters that could involve potential confidential communications between Curley, Schultz, Spanier and Ms. Baldwin. . . .
[However, Attorney Fina did in fact question Baldwin about conversations with Spanier, which she answered fully. Her answers contradicted Spanier’s prior grand jury testimony. At one point in the questioning, she testified that public statements by Spanier about the sex abuse scandal were false, and added that “he is not a person of integrity. He lied to me.” She then repeated, “I can’t get inside his mind, but the fact is that there is no doubt that he lied to me. I can’t think of any reason, other reason for lying than trying to hide it from me.”]
Following Ms. Baldwin’s testimony, that same day, the grand jury recommended charges against Spanier for failure to report suspected child abuse, perjury, obstruction of justice, EWOC, conspiracy to commit obstruction of justice, conspiracy to commit perjury, and conspiracy to commit EWOC. The Commonwealth filed a criminal complaint containing those charges on November 1, 2012, and the grand jury presentment was attached to the complaint as the basis for the charges.
In the companion case of Commonwealth v. Schultz, 133 A.3d 294 (Pa. Super. 2016), . . . we . . . set forth the general principles of law governing the attorney-client privilege as follows. . . .
The attorney-client relationship exists not only in one-on-one situations between an individual and an attorney, but it can also 297exist in a corporate environment in which general counsel or legal staff is present. “When the client is a corporation, the privilege extends to communications between its attorney and agents or employees authorized to act on the corporation’s behalf.” . . . In Upjohn, the United States Supreme Court analyzed the scope of the attorney-client privilege when the client is a corporation. Although Upjohn itself did not involve warnings or a discussion of a lawyer’s explanation regarding the scope of his representation, the Supreme Court observed that, under certain situations, information about the extent of the attorney-client relationship between a corporate counsel and an employee might be necessary. As a result of that case, “Upjohn warnings” have evolved that specifically inform a corporate employee that corporate counsel represents the corporation and not the individual, and that the corporation possesses the attorney-client privilege.
In addition to the traditional attorney-client relationship and the corporate environment, the attorney-client privilege also can exist in the context of co-defendants and their attorney or attorneys. When multiple defendants and their counsel engage in a common defense, the privilege is not waived by the sharing of confidential information among the parties for the benefit of the joint defense. . . .
[W]e find that Ms. Baldwin did not adequately explain to Spanier that her representation of him was solely as an agent of Penn State and that she did not represent his individual interests. Although Spanier knew Ms. Baldwin was general counsel for Penn State, this knowledge does not ipso facto result in Spanier understanding that she represented him solely in an agency capacity before the grand jury. Spanier was not aware that Ms. Baldwin was not appearing with him in order to protect his interests and therefore unable to provide advice concerning whether he should answer potentially incriminating questions or invoke his right against self-incrimination. In line with our holdings in Schultz and Curley, we conclude that Ms. Baldwin was incompetent to testify at the grand jury hearing as to communications between her and Spanier.
In Schultz, . . . we asserted,
As our Rules of Professional Conduct illustrate, communications between a putative client and corporate counsel are generally privileged prior to counsel informing the individual of the distinction between representing the individual as an agent of the corporation and representing the person in his or her personal capacity. See Pa. R. Prof. Conduct 1.2(c) (lawyer may limit scope of representation provided the client gives informed consent); Pa. R. Prof. Conduct 1.0(e) (defining “informed consent”); see also Pa. R. Prof. Conduct 1.6(a) (“A lawyer shall not reveal information relating to representation of a client 298unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out representation and except as stated in paragraphs (b) and (c).”); see also Pa. R. Prof. Conduct 1.18(b) (“Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal information which may be significantly harmful to that person”).
When corporate counsel clarifies the potential inherent conflict of interest in representing the corporation and an individual and explains that the attorney may divulge the communications between that person and the attorney because they do not represent the individual, the individual may then make a knowing, intelligent, and voluntary decision whether to continue communicating with corporate counsel. This is all the more essential where the purpose of the individual seeking advice relates to an appearance and testimony before a criminal investigating grand jury.
Absent a privilege existing for preliminary communications, the putative client cannot have full and frank discussions with the attorney in order to determine whether it would be appropriate for that lawyer to represent him or her in an individual capacity. Upjohn (“Its purpose is to encourage full and frank communication between attorneys and their clients.”).
Furthermore, the attorney might be unable to make a determination as to whether he or she could represent that individual personally if the putative client believes full disclosure will not be kept confidential. . . .
As we discussed in both Schultz and Curley, communications between a corporate attorney and an employee of a corporation may be personally privileged. It simply does not follow that, if Ms. Baldwin represented Spanier as an agent of Penn State, none of his communications with her were privileged. . . .
For reasons outlined, we agree that an attorney-client relationship existed between Spanier and Ms. Baldwin before and during his grand jury testimony, thereby giving rise to an attorney-client privilege. Ms. Baldwin’s grand jury testimony regarding communications with Spanier constituted a violation of the attorney-client privilege, rendering her incompetent to testify. Accordingly, and in light of our holdings in Schultz and Curley, we quash the challenged charges of perjury, obstruction of justice, and conspiracy to commit those crimes.
Order reversed. Jurisdiction relinquished.
2991.As a result of this case, Pennsylvania’s Office of Disciplinary Counsel (ODC) filed charges against Cynthia Baldwin for violating Pennsylvania Rules 1.1 (competence), 1.6 (confidentiality), 1.7 (conflict of interest), and 8.4 (violation of Rules of Professional Conduct).75 ODC requested that the state Supreme Court censure her, and, in February 2020, the Supreme Court imposed discipline in the form of a public reprimand. Baldwin is herself a former justice of the Pennsylvania Supreme Court.
2.As this case indicates, the potential confusion over who an organization’s counsel represents is a dangerous one. Recall Rule 1.13(a): Counsel represents the organization, not its officers as individuals. In that sense, Baldwin gave the right answer in her sidebar with Judge Feudale. And, as mentioned above, Rule 1.13(f) requires organizational counsel to warn officers, employees, and other constituents that counsel represents the organization, not them, “when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” Such explanations are sometimes metaphorically called “Miranda warnings”; here, the court refers to them more accurately as “Upjohn warnings.” In the absence of such warnings, the problem is that an officer like Spanier can form the reasonable belief of representation, creating an implied lawyer-client relationship, to which all duties attached (as discussed in Chapter 5). Do you agree with the court that such a relationship was established here by Baldwin’s conduct?
2.Waiver of the Organizational Privilege
In the wake of corporate scandals around the turn of the 21st century, federal officials began pressuring organizations under investigation to waive the attorney-client privilege and work product doctrine in return for leniency.
In 2001, the SEC developed its own approach for evaluating the waiver of privilege as a factor in making charging decisions. Commonly known as the Seaboard report, the SEC’s policy credits companies that offer “complete cooperation” with the SEC staff. A company that offers such “complete cooperation” may face reduced charges or lighter sanctions—or even escape an enforcement action altogether. To exhibit this cooperation, companies must engage in self-policing, self-reporting, remediation, and cooperation—and, in terms of evaluating whether a company has been fully cooperative, the SEC has stated that it considers, among other things, whether the company has sought to hide behind, or alternatively waived, the attorney-client privilege. 76
300Following the SEC’s lead, in 2003 the DOJ issued a policy memo identifying factors that federal prosecutors should consider in deciding whether to charge organizations with criminal misconduct. These factors included the organization’s timely and voluntary disclosure of wrongdoing, and its willingness to cooperate in the investigation of its agents, even if that cooperation involved waiver of the attorney-client privilege.77 In the face of a firestorm of criticism, however, the DOJ withdrew the controversial policy—and in 2008, it revised the Justice Manual (formerly called the U.S. Attorneys’ Manual) to prohibit federal prosecutors from penalizing businesses for refusing to waive the attorney-client privilege. The new guidance, now binding on federal prosecutors, states:
Eligibility for cooperation credit is not predicated upon the waiver of attorney-client privilege or work product protection. Instead, the sort of cooperation that is most valuable to resolving allegations of misconduct by a corporation and its officers, directors, employees, or agents is disclosure of the relevant facts concerning such misconduct. In this regard, the analysis parallels that for a non-corporate defendant, where cooperation typically requires disclosure of relevant factual knowledge and not of discussions between an individual and his attorneys. 78
Still, some commentators, along with the ABA, have worried that the policy might not be extended to all agencies and that the possibility of informal, non-explicit coercion may remain.
1.What might be some problems with the Seaboard report or the DOJ’s 2003 policy memo? In raising objections, some have argued that such policies encourage counsel not to make written notes of their investigations and might also impair corporate counsels’ ability to obtain candid disclosures from the corporation’s employees.79 Others, however, dispute that the policies would chill the zeal or quality of internal corporate investigations, because corporations cannot afford not to know everything that a government investigation might unearth.80 Do you find either position persuasive?
3012.Some commentators believe that privilege waiver has become a symbolic issue to the bar. Because corporations lack the Fifth Amendment privilege against self-incrimination, defense counsel regard the attorney-client privilege as their only shield. In the eyes of defense counsel, the government seems to believe “that the proper role of corporations confronted with allegations of wrongdoing is, quite simply, to roll over. Individual defendants can fight like hell, but corporations should self-report, remediate harm, cooperate fully, and take whatever prosecutors and regulators believe they have coming. Zealous defense counsel find this assumption beyond galling.”81 Do you? What might be the SEC’s or DOJ’s rejoinder to this?
3.A converse problem arises when an organization’s interest lies in maintaining the privilege, but it is in individual directors’ interest for the corporation to waive the privilege. For example, when directors are sued for corporate misconduct, they may wish to raise the defense that they relied on the advice of counsel. In order for them to establish the defense, disclosure of privileged materials will be necessary. How should this dilemma be resolved?82
Rule 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
A prior version of the Comment to Rule 4.2 made clear that the Rule prohibited all contact with employees “whose statement may constitute an admission on the part of the organization.” Under the federal rules of evidence and many state rules, any statement by an employee concerning matters within the scope of their employment is admissible. The current version of the Comment omits the prohibition against contacting employees. However, Comment 7 states:
[7] In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
3021.What is the purpose of the no-contact rule in an organizational setting? If it is to protect the organization from ill-advised statements, why should it be limited to those constituents as defined in Comment 7 of Rule 4.2? Isn’t the risk that other employees contacted without counsel present might make statements that will strengthen the opposing party’s case?
2.If the purpose of the rule is to protect the organization, why is permission for contact needed from counsel for an employee who is separately represented, rather than from counsel for the organization? On the other hand, if the concern is for the employee, will his or her best interests be necessarily served by decisions made by the organization’s counsel? In this regard, note that the Restatement § 100 permits contact with an opposing party’s agents or employees even if their statements will be admissible but not with agents or employees who direct counsel, have the power to settle the matter, or whose statements would bind the organization or could be imputed to the organization.
3.Think back to Upjohn and recall that one justification for the Court’s decision was that, since the privilege only applies to privileged communications and not underlying facts, “the Government was free to question the employees who communicated with” Upjohn’s counsel. Under Rule 4.2, would the IRS’s lawyer have been able to contact the Upjohn employees directly? Could an IRS agent have done so and reported back to the IRS lawyer? If not, does that affect your assessment of whether Upjohn was properly decided?
Similar to the attorney-client privilege, the work-product doctrine protects material prepared by or at the behest of counsel in anticipation of litigation or for trial. Grounded on the notion that the opposing party “shouldn’t be allowed to take a free ride on the other party’s research, or get the inside dope on that party’s strategy,” the work-product doctrine establishes a zone of privacy in which lawyers can analyze and prepare their client’s case free from outside scrutiny.83
The work-product doctrine has its roots in the Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495 (1947). Hickman involved a personal injury accident case where the defense lawyer, Samuel B. Fortenbaugh, Jr., privately interviewed several of the accident’s survivors and witnesses and “took statements from them with an eye toward the anticipated litigation.” 329 U.S. at 497. Sometime later, a representative of a victim who died in the accident sued and filed an interrogatory asking, essentially, whether any of the accident’s survivors were interviewed and, if so, for Fortenbaugh’s interview notes. Id. at 509. 303Fortenbaugh initially balked, claiming that the notes were governed by the attorney-client privilege. But the district court disagreed, insisting that the notes, containing statements made by third parties, were not so protected—and the court ordered disclosure. Then, when Fortenbaugh still refused to disclose the notes in contravention of the court’s order, the court adjudged Fortenbaugh in contempt and ordered him imprisoned.
The case ultimately made its way to the U.S. Supreme Court, which reversed the district court’s ruling while creating the work-product doctrine of today. In so doing, a unanimous Court reasoned:
Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed . . . the ‘Work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
In a now-famous concurrence, Justice Jackson, joined by Justice Frankfurter, agreed, reasoning:
[A] common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary. The real purpose and the probable effect of the practice ordered by the district court would be to put trials on a level even lower than a ‘battle of wits.’ I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him.
304Unlike the attorney-client privilege, however, the Hickman Court held that work-product protection is not absolute. In the Court’s words: “Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.” Id. at 511. Or, per Federal Rule of Civil Procedure 26(b)(3), which enshrines the work-product rule in the federal system, most work product can be discovered by an opposing party upon a showing of “substantial need for the materials” coupled with a showing that the party “cannot, without undue hardship, obtain their substantial equivalent by other means.”84 Opinion work product, which consists of the opinions, conclusions, or mental impressions of a lawyer, is entitled to somewhat more protection than “ordinary” work product.85
On the other hand, while the work-product doctrine is only a qualified privilege (and, as such, can be overcome in ways that the attorney-client privilege cannot be overcome), in other respects it is more robust than the attorney-client privilege. Specifically, while the disclosure of a privileged document to any third party typically waives the attorney-client privilege, the work-product doctrine is not so easily eviscerated. A 2014 court decision explains the basis for this asymmetrical treatment:
This disparity in treatment flows from the very different goals the privileges are designed to effectuate. The attorney-client privilege promotes the attorney-client relationship, and, indirectly, the functioning of our legal system, by protecting the confidentiality of communications between clients and their attorneys. Upjohn Co. v. United States, 449 U.S. 383 (1981). In contrast, the work-product doctrine promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation.
Because the work-product doctrine serves to protect an attorney’s work product from falling into the hands of an adversary, a disclosure to a third party does not automatically waive work-product protection. A waiver occurs when the protected communications are disclosed in a manner that substantially increase[s] the opportunity for potential adversaries to obtain the information.86
3051.For a time, it was unclear whether a document could be entitled to work-product protection if the document was prepared, not by a lawyer, but by his or her agent. The Supreme Court put the question to rest in 1975, ruling:
[T]he [work-product] doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protects material prepared by agents for the attorney as well as those prepared by the attorney himself.
United States v. Nobles, 422 U.S. 225, 239 (1975).
2.The work-product doctrine attaches whenever litigation is in progress or whenever the lawyer reasonably anticipated litigation at the time the material was prepared. “Litigation” includes civil and criminal trial proceedings, as well as alternative dispute resolution proceedings such as mediations, arbitrations, or mini-trials.
3.There is a crime-fraud exception to the work-product doctrine as well as to the attorney-client privilege; but the elements are slightly different. Recall that for the crime-fraud exception to the attorney-client privilege, what matters is the client’s criminal or fraudulent intent, regardless of the lawyer’s. In the work-product context, a lawyer’s fraudulence can trigger the crime-fraud exception even if the client is blameless.87
4.Stepping back, the work-product doctrine aims to strike a balance between openness on the one hand and secrecy and privacy on the other, cognizant that, whenever documents are shielded from scrutiny, a party’s search for the truth might be impaired, and the costs of litigation may rise. Recognizing the competing interests at play, do you believe the work-product doctrine strikes a proper balance? Or, would you favor stronger protections for attorney work product or, alternatively, more robust discovery?
F.The Ethical Duty of Confidentiality
We now shift gears, to consider confidentiality, as distinct from the attorney-client privilege. Lawyers’ duties of confidentiality are defined by states’ Rules of Professional Conduct. Curiously, however, the view that lawyers have an ethical obligation to keep client confidences is a relative newcomer, especially compared with the attorney-client privilege. The earliest treatments of legal ethics in the United States, David Hoffman’s 1836 “Resolutions” and George Sharswood’s 1854 Essay on Professional Ethics, identify no such obligation. The duty of confidentiality appears to have been the invention of the eminent late-nineteenth-century corporate lawyer David Dudley Field.88
306As noted earlier, the attorney-client privilege prevents lawyers only from offering evidence in legal proceedings about confidential communications with clients. Bar ethical mandates, by contrast, enjoin lawyers from revealing confidential information received from anyone to anyone, in or out of courtrooms. Indeed, Rule 1.6(a) states simply that “[a] lawyer shall not reveal information relating to representation of a client.” Moreover, as previous discussion indicates, while the attorney-client privilege is riddled with exceptions that significantly narrow its scope, bar ethical rules offer broader protections, with fewer exceptions.
Rule 1.9(c)(2) makes explicit that the duty of confidentiality extends to former clients as well as current clients, and Rule 1.18(b) extends it to prospective clients as well. The protection of former and prospective clients goes beyond merely revealing confidential information. It also prohibits using confidential information “to the disadvantage of a former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.”89 For example, a lawyer who practices in an industry-specific specialty may have acquired important information about a former client company that could be used to that company’s disadvantage, if in the future the lawyer represents a competitor. The ABA Standing Committee on Ethics and Professional Responsibility has explained the exception for “generally known” information about the former client thus:
[I]nformation is generally known . . . if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. . . . Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.90
Powerful as the confidentiality norm is, Rule 1.6, which governs client confidentiality, contains some important exceptions. Explored in more detail below, nearly all of these exceptions have ignited controversy. In the wake of major corporate scandals which led to enactment of the Sarbanes-Oxley Act, for example, the ABA’s House of Delegates voted to permit a lawyer to disclose confidential information “to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in 307furtherance of which the client has used or is using the lawyer’s services.”91 The vote, however, was very close: 218–201.
The current version of Rule 1.6 provides as follows:
(a)A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1)to prevent reasonably certain death or substantial bodily harm;
(2)to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3)to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4)to secure legal advice about the lawyer’s compliance with these Rules;
(5)to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6)to comply with other law or a court order.
The following case illustrates the potential problems created by these narrow disclosure permissions.
Supreme Court of Minnesota
116 N.W.2d 704, 706–10 (1962).
n Thomas Gallagher , Justice .
. . . . The prior action was brought against defendants by Theodore Spaulding, as father and natural guardian of David Spaulding, for 308injuries sustained by David in an automobile accident, arising out of a collision which occurred August 24, 1956, between an automobile driven by John Zimmerman, in which David was a passenger, and one owned by John Ledermann and driven by Florian Ledermann. [That lawsuit was settled in 1957. Because David was a minor, the parties had to obtain court approval of the settlement agreement’s terms. In this instant action, Spaulding now seeks to vacate the settlement. Below, the district court ruled in Spaulding’s favor, and Zimmerman appealed.]
On appeal defendants contend that the court was without jurisdiction to vacate the settlement solely because . . . their counsel then possessed information, unknown to plaintiff herein, that at the time he was suffering from an aorta aneurysm which may have resulted from the accident, because no duty rested upon them to disclose information to plaintiff which they could assume had been disclosed to him by his own physicians. . . .
After the accident, David’s injuries were diagnosed by his family physician, Dr. James H. Cain, as a severe crushing injury of the chest with multiple rib fractures; a severe cerebral concussion, probably with petechial hemorrhages of the brain; and bilateral fractures of the clavicles. At Dr. Cain’s suggestion, on January 3, 1957, David was examined by Dr. John F. Pohl, an orthopedic specialist, who made X-ray studies of his chest. Dr. Pohl’s detailed report of this examination included the following:
“ . . . The lung fields are clear. The heart and aorta are normal.”
Nothing in such report indicated the aorta aneurysm with which David was then suffering. On March 1, 1957, at the suggestion of Dr. Pohl, David was examined from a neurological viewpoint by Dr. Paul S. Blake, and in the report of this examination there was no finding of the aorta aneurysm.
In the meantime, on February 22, 1957, at defendants’ request, David was examined by Dr. Hewitt Hannah, a neurologist. On February 26, 1957, the latter reported to Messrs. Field, Arveson, & Donoho, attorneys for defendant John Zimmerman, as follows:
The one feature of the case which bothers me more than any other part of the case is the fact that this boy of 20 years of age has an aneurysm, which means a dilatation of the aorta and the arch of the aorta. Whether this came out of this accident I cannot say with any degree of certainty and I have discussed it with the Roentgenologist and a couple of Internists. . . . Of course an aneurysm or dilatation of the aorta in a boy of this age is a serious matter as far as his life. This aneurysm may dilate further and it might rupture with further dilatation and this would cause his death.
It would be interesting also to know whether the X-ray of his lungs, taken immediately following the accident, shows this 309 dilatation or not. If it was not present immediately following the accident and is now present, then we could be sure that it came out of the accident.
Prior to the negotiations for settlement, the contents of the above report were made known to counsel for defendants Florian and John Ledermann.
The case was called for trial on March 4, 1957, at which time the respective parties and their counsel possessed such information as to David’s physical condition as was revealed to them by their respective medical examiners as above described. It is thus apparent that neither David nor his father, the nominal plaintiff in the prior action, was then aware that David was suffering the aorta aneurysm but on the contrary believed that he was recovering from the injuries sustained in the accident.
On the following day an agreement for settlement was reached wherein, in consideration of the payment of $6,500, David and his father agreed to settle in full for all claims arising out of the accident. . . .
Early in 1959, David was required by the army reserve, of which he was a member, to have a physical checkup. For this, he again engaged the services of Dr. Cain. In this checkup, the latter discovered the aorta aneurysm. He then reexamined the X-rays which had been taken shortly after the accident and at this time discovered that they disclosed the beginning of the process which produced the aneurysm. He promptly sent David to Dr. Jerome Grismer for an examination and opinion. The latter confirmed the finding of the aorta aneurysm and recommended immediate surgery therefor. This was performed by him at Mount Sinai Hospital in Minneapolis on March 10, 1959.
Shortly thereafter, David, having attained his majority, instituted the present action for additional damages due to the more serious injuries including the aorta aneurysm which he alleges proximately resulted from the accident. As indicated above, the prior order for settlement was vacated. In a memorandum made a part of the order vacating the settlement, the court stated: . . .
The mistake concerning the existence of the aneurysm was not mutual. For reasons which do not appear, plaintiff’s doctor failed to ascertain its existence. By reason of the failure of plaintiff’s counsel to use available rules of discovery, plaintiff’s doctor and all his representatives did not learn that defendants and their agents knew of its existence and possible serious consequences. Except for the character of the concealment in the light of plaintiff’s minority, the Court would, I believe, be justified in denying plaintiff’s motion to vacate, leaving him to whatever questionable remedy he may have against his doctor and against his lawyer.
310That defendants’ counsel concealed the knowledge they had is not disputed. The essence of the application of the above rule is the character of the concealment. Was it done under circumstances that defendants must be charged with knowledge that plaintiff did not know of the injury? If so, an enriching advantage was gained for defendants at plaintiff’s expense. There is no doubt of the good faith of both defendants’ counsel. There is no doubt that during the course of the negotiations, when the parties were in an adversary relationship, no rule required or duty rested upon defendants or their representatives to disclose this knowledge. However, once the agreement to settle was reached, it is difficult to characterize the parties’ relationship as adverse. At this point all parties were interested in securing Court approval. . . .
But it is not possible to escape the inference that defendants’ representatives knew, or must be here charged with knowing, that plaintiff under all the circumstances would not accept the sum of $6500.00 if he or his representatives knew of the aneurysm and its possible serious consequences. Moreover, there is no showing by defendants that would support an inference that plaintiff and his representatives knew of the existence of the aneurysm but concluded that it was not causally related to the accident.
When the adversary nature of the negotiations concluded in a settlement, the procedure took on the posture of a joint application to the Court, at least so far as the facts upon which the Court could and must approve settlement is concerned. It is here that the true nature of the concealment appears, and defendants’ failure to act affirmatively, after having been given a copy of the application for approval, can only be defendants’ decision to take a calculated risk that the settlement would be final . . .
To hold that the concealment was not of such character as to result in an unconscionable advantage over plaintiff’s ignorance or mistake, would be to penalize innocence and incompetence and reward less than full performance of an officer of the Court’s duty to make full disclosure to the Court when applying for approval in minor settlement proceedings.” . . .
[I]n the instant case the court did not abuse its discretion in setting aside the settlement which it had approved on plaintiff’s behalf while he was still a minor. It is undisputed that neither he nor his counsel nor his medical attendants were aware that at the time settlement was made he was suffering from an aorta aneurysm which may have resulted from the accident. The seriousness of this disability is indicated by Dr. Hannah’s report indicating the imminent danger of death therefrom. This was 311known by counsel for both defendants but was not disclosed to the court at the time it was petitioned to approve the settlement. While no canon of ethics or legal obligation may have required them to inform plaintiff or his counsel with respect thereto, or to advise the court therein, it did become obvious to them at the time, that the settlement then made did not contemplate or take into consideration the disability described. This fact opened the way for the court to later exercise its discretion in vacating the settlement and under the circumstances described we cannot say that there was any abuse of discretion on the part of the court in so doing. . . .
1.In Spaulding v. Zimmerman , the district court insisted (and the Minnesota Supreme Court agreed) that, during adversary settlement negotiations, “no rule required or duty rested upon defendants or their representatives” to disclose that David Spaulding suffered from an aortic aneurysm. What is your view? Did defense counsel have a moral duty to provide that information?
2.Consider Rule 1.6(b)(1), explored in more detail in Section G.1, infra. Rule 1.6(b)(1) permits a lawyer to disclose client confidences “to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” Was David Spaulding’s impending death or substantial bodily harm “reasonably certain”? According to a 2003 study, the annual probability of rupture in an aortic aneurism of 5–5.9 centimeters is 1 percent; the probability for an aneurism of six centimeters or more is 14 percent.92 Put differently, the odds that David Spaulding’s aneurism would rupture some time before he turned forty-five was 21 percent for the smaller aneurism and 97 percent if the aneurism was six centimeters. Would Rule 1.6(b)(1) permit defense counsel to inform Spaulding of his condition? Should the numerical data matter in a lawyer’s decision about whether to warn Spaulding about his aneurism?
3.The district judge vacated the settlement on the theory that, once the parties were before the court to seek the court’s acceptance of the settlement, they were no longer in an adversary posture, and “[i]t is here that the true nature of the concealment appears.” Is the implication that although defendants’ counsel had no duty to save Spaulding’s life, they did have a duty not to mislead the trial judge? How does that make sense? Is it true that lawyers have an obligation to reveal all relevant facts about a case, including confidential information, when presenting an out-of-court settlement to the judge for approval? See Rules 3.3, 3.4 , 4.1, and 8.4 .
4.According to the district judge: “[T]here is no doubt of the good faith of both defendants’ counsel.” Do you agree? What does good faith mean in this context? Is it relevant (or disturbing) that, according to a later interview with 312 the judge, he was friends with a senior partner in the defendant’s law firm and didn’t want to expose the firm to criticism? 93
The court reserves its criticism for Spaulding’s lawyer, who failed “to use available rules of discovery” to obtain the medical reports of defendants’ physician. Only the fact that Spaulding was a minor prevented the judge from “denying plaintiff’s motion to vacate, leaving him to whatever questionable remedy he may have against his doctor and against his lawyer.” In your view, does the fault lie more with plaintiff’s counsel than with defendants’? Should the result of the case have depended on the plaintiff’s age?
5.In their case history of Spaulding v. Zimmerman , Roger C. Cramton and Lori P. Knowles interviewed the surviving participants of the litigation and reviewed court records. Cramton and Knowles found that the two defense lawyers never informed their clients about Spaulding’s aneurysm; indeed, they appear to have made the decision not to disclose the information entirely on their own, without consulting either their clients or the insurers who were paying their fee. 94 What might account for such conduct?
Cramton and Knowles also shed light on one of the puzzling features of the case—the failure on the part of Spaulding’s lawyer to request Dr. Hannah’s report. In part, this lapse may be attributable to the lawyer’s youth and inexperience, but he also had a legitimate worry about demanding the report. He feared that it might lead defense counsel to request reports by Spaulding’s physicians, one of which recommended waiting a year to settle the case in order to make sure of the extent of Spaulding’s injuries. Spaulding’s lawyer feared that if this report came to light, the court might not approve the immediate settlement that all parties desired. 95 Does this affect your appraisal of responsibility in the case?
6.The story does not have a happy ending. Although David Spaulding’s aortic aneurysm was discovered in time for corrective surgery, a side-effect of the surgery was that David lost the power of speech. Not all the lawyers lived happily ever after, either. Richard Pemberton, a young lawyer who argued the case for defendant Zimmerman in the Minnesota Supreme Court, believed that he received the assignment because a senior partner found it distasteful. Pemberton did as well and subsequently had this to say about his assignment:
After 20 years of practice, I would like to think that I would have disclosed the aneurysm of the aorta as an act of humanity and without regard to the legalities involved, just as I surely would now. You might suggest to your students in the course on professional 313 responsibility that a pretty good rule for them to practice respecting professional conduct is to do the right thing. 96
Is it that simple? If the bar’s ethical rules at the time prohibited disclosure, what’s the right thing?
7.What would you say to a client concerning confidentiality and the attorney-client privilege during your first meeting? If your client seems afraid to trust you with information, can you assure the client of confidentiality without mentioning that the rules have exceptions? To what extent should lawyers’ assessments of individual client interests and capacities affect the conversation about the privilege and client confidentiality?
G.Exceptions to the Duty of Confidentiality
1.Disclosure to Prevent Death, Substantial Bodily Harm, or Wrongful Punishment
As noted above, the current Rule 1.6(b)(1)—adopted in 2002—permits disclosure of client confidences when the lawyer “reasonably believes” that disclosure is necessary to prevent “reasonably certain” death or substantial bodily harm.
Not all states march lockstep with the Model Rule, however. Some states require that the harm be the result of the client’s conduct.97 (The current Model Rules contain no such requirement.) Some states, including California, permit disclosure only if the death or substantial bodily harm would result from a client’s criminal act.98 Others permit disclosure if the client’s act was either criminal or fraudulent. Thus, Connecticut permits disclosure of client confidences to the extent “necessary to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm.”99 Meanwhile, Rhode Island and South Dakota have retained the Model Rules’ pre-2002 limitation (requiring that the harm be “imminent”).100 To understand the significance of imminence, consider a hypothetical case in which the threatened death or bodily harm arises from a slow-acting toxic chemical. In such a case, the death or bodily harm would not be imminent, and the lawyer would have no authority to reveal client confidences to forestall it. In Spaulding v. Zimmerman, the limitation to imminent death or bodily injury might foreclose 314Zimmerman’s lawyers from revealing Spaulding’s aneurism, which might not rupture for many years.
Would the result be different with “imminent” replaced by Model Rule 1.6(b)(1)’s “reasonably certain”? Comment 6 to the Rule explains that “harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” The Comment continues: “Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.” Id.
1.Do you support the current version of Rule 1.6(b)(1)? Or would you support a narrower or broader formulation? Why?
2.Alaska and Massachusetts permit lawyers to reveal client confidences in order to prevent the wrongful execution or incarceration of another person. This exception clarifies that the permission to reveal confidences to prevent death includes death by execution. It also addresses an excruciating moral dilemma that lawyers face when they know that an innocent person is going to prison (or is going to be executed) for a crime that someone else—perhaps the client—committed.101
Somewhat surprisingly, many defense lawyers oppose the exception, arguing that instances in which the provision applies are rare and, even under the current system, are typically adequately resolved (often, because the existing rules permit disclosure with the client’s informed consent). Some defense lawyers also fear that the amendment would dilute the attorney-client privilege and Rule 1.6, and they worry that the exception threatens to undermine the attorney-client relationship, to the extent the attorney would have to explain the exception to the client, at the start of the representation.102 Weighing the costs and benefits of such a provision, would you support such an amendment to the Rules?
Others suggest that, even without a clear exception, the Model Rules may already permit such disclosures because: “If the daily life of the wrongly incarcerated is producing ‘reasonably certain . . . substantial bodily harm,’ 315then the lawyer may reveal the client information necessary to prevent it.”103 What do you make of that argument? How might it affect cases like that of Alton Logan, discussed above?
2.Disclosure to Prevent or Rectify a Crime or Fraud
Some of the most common, and therefore troubling, confidentiality dilemmas arise out of client fraud. As Geoffrey Hazard puts it: “Responsible law-giving require[s] recognition . . . that honest lawyers can suffer the misfortune of having dishonest clients.”104 Hazard cautions that lawyers representing such clients risk criminal sanctions for aiding and abetting fraud if the lawyers protect client confidences too zealously.105 Some lawyers seem to believe that the attorney-client relationship insulates them from criminal or civil liability for crimes and frauds involving their professional assistance. This is simply not so.
It was not until 2003 that the ABA’s Model Rules permitted lawyers to divulge client confidences (a) to prevent client crime or fraud; or (b) to rectify client fraud in which lawyers had unwittingly participated. Remarkably, however, by that time, all but eight states and the District of Columbia had already abandoned the Model Rules’ across-the-board protection of confidences concerning client fraud. After the ABA acted, the remaining states adopted one or both of the proposed permissions to divulge confidences; some even strengthened them to require disclosure.
Required disclosure. Florida, New Jersey, Virginia, and Wisconsin require lawyers to disclose confidential information to prevent certain client crimes; Hawaii, New Jersey, and Wisconsin also require the lawyer to disclose such information to prevent a non-criminal fraud that will cause “substantial injury” to another’s financial interests or property (in Hawaii, only if the lawyer’s services were used in perpetrating the fraud).
Prohibited disclosure. Only Alabama, California, the District of Columbia, Kentucky, Missouri, Montana, Nebraska, Rhode Island, and South Dakota forbid the disclosure of confidences to prevent criminal conduct (unless it threatens life or limb, or in some cases threatens the integrity of judicial process).
Permitted disclosure. Other states have a variety of rules permitting the disclosure of confidences to prevent criminal or non-criminal frauds or to rectify frauds in which the lawyer’s services were used. Similarly, the Restatement § 67 permits lawyers to disclose confidences to prevent or rectify client crime or fraud threatening “substantial financial loss,” if the lawyer’s services are being used in the same matter.
316These state responses recognize that, as Hazard puts it:
[A]n honest lawyer with a dishonest client is at risk of being drawn into a transaction which is tainted with fraud or other illegality; that in such an eventuality the lawyer can be charged with being an accessory to the client’s wrongdoing; that honest lawyers should be able effectively to disengage themselves from client fraud; and that being able to effect such a disengagement requires clear legal authority to disclose client confidences if necessary to that purpose. [Responsible law-giving] also requires having no tears for clients who draw their lawyers into fraudulent schemes.106
In every decade from the 1970s through the 2000s, at least one notorious case involved lawyers who, by honoring the duty of confidentiality, permitted clients to engage in fraud; the names of these scandals have become shorthand for the entire problem and the debates surrounding them. The 1970s saw lawyers investigated for their role in a stock market fraud involving the National Student Marketing Corporation. In the 1980s the case involved lawyers representing the computer leasing firm O.P.M., which was, in reality, a Ponzi scheme. What some called “the ethics case of the ’90s” implicated the Wall Street law firm of Kaye, Scholer, Fierman, Hays & Handler in their client’s financial services fraud, and for some time “Kaye, Scholer” displaced O.P.M. as the quintessential client fraud case. After 2001, the case was “Enron.” Below, we briefly relate the history of these episodes.
National Student Marketing involved an SEC enforcement action that charged lawyers with aiding and abetting client fraud by sitting silently in a meeting while their clients committed misdeeds.107
The O.P.M. case (described in detail in Problem 3, infra) involved a law firm closing deals for crooked clients, even after the firm learned that earlier deals it had closed were fraudulent. The O.P.M. story broke in 1981, while an ABA Commission was drafting the Model Rules. Several influential members of the Commission favored broader exceptions to confidentiality, and O.P.M. became a poster child for the perils of rules that outlaw disclosure. Early drafts of the Model Rules included exceptions to confidentiality if disclosure was the only way for lawyers to prevent such fraud or rectify frauds that they had unwittingly assisted. But the bar objected and the ABA (for a long time) rejected those exceptions.108
The Kaye, Scholer case arose out of the collapse of the savings and loan industry (the so-called “thrift industry”) in the late 1980s, which cost 317taxpayers an estimated half-a-trillion dollars because the thrifts were federally insured. One of the most notorious of the thrift owners, Charles Keating, retained Kaye, Scholer to help fight off bank examiners whose job was to make sure that thrifts were run prudently. Kaye, Scholer’s lawyers informed the bank examiners—who were entitled by law to full access to the thrift’s records—that all requests for information were to be channeled through the law firm. Then the firm allegedly stonewalled the examiners. The upshot was: At the same time the firm was publicly asserting that Keating’s Lincoln Savings and Loan was making sound, prudent investments, the thrift was actually involved in fraudulent and high-risk transactions that put it in a deep financial hole.
The Office of Thrift Supervision (OTS)—a government agency charged with recovering as much money as possible from the savings and loan mess—ultimately took Lincoln over as its receiver. Suddenly, Kaye, Scholer’s adversary had become the client, and the attorney-client privilege no longer shielded Lincoln’s records. Based on its review of Lincoln’s files, OTS initiated charges against the law firm for misrepresentation and concealment. Without conceding fault, the firm settled for $41 million. In a widely-quoted judicial opinion, federal judge Stanley Sporkin blasted the lawyers and accountants who worked for Keating:
The questions that must be asked are: Where were these professionals . . . when these clearly improper transactions were being consummated? Why didn’t any of them speak up or disassociate themselves from these transactions? Where also were the outside accountants and attorneys when these transactions were effectuated? What is difficult to understand is that with all the professional talent involved (both accounting and legal), why at least one professional would not have blown the whistle to stop the overreaching that took place in this case.109
Then, in 2001, Enron came to the fore. The energy company’s manipulation consisted of extremely intricate transactions designed to move losses off Enron’s books and onto the books of “special purpose entities” that were nominally independent but that were actually created for no purpose other than parking losses. All of these transactions involved many professionals: executives, accountants, and lawyers. Enron’s in-house legal department consisted of 250 attorneys—and at least two outside law firms (Vinson & Elkins and Andrews & Kurth) played a substantial role in papering Enron’s deals. No single set of events as dramatic as the O.P.M. or Kaye, Scholer cases emerged from lawyers’ behavior.110 But a lengthy report by a court-appointed bankruptcy examiner suggested that the lawyers’ failure to blow the 318whistle (internally as well as externally) created ground for malpractice actions.111 Vinson & Elkins settled lawsuits for $30 million.112
These are not isolated cases. A survey by the New York City Bar examining nine scandals found that in at least seven lawyers were well positioned to ask questions about the conduct leading to the litigation, and in one of the two exceptions, lawyers knew of other violations of fiduciary obligations.113 Litigation over lawyers’ responsibilities in such cases of client fraud is likely to remain a prominent feature of the contemporary legal landscape. Underlying all of these cases are fundamental problems of adversarial ethics. What, if any, obligations do lawyers have to protect innocent third parties from unscrupulous clients? What obligations do lawyers owe to a client’s shareholders, whose interests might be jeopardized by managerial misconduct? How are those responsibilities to be balanced against the duty of confidentiality?
1.If you suspect that your client is involved in fraudulent or hazardous conduct, can you keep your hands clean by keeping your eyes closed? Under what circumstances might you have an obligation to investigate your client’s activities? Under what circumstances might you have an obligation to report managerial misconduct to a board of directors? See the discussion of organizational clients, Rule 1.13, and the Sarbanes-Oxley statute in Chapter 11.
Many business lawyers deny that they have any responsibilities to investigate potential client misconduct, but there is distinguished judicial authority to the contrary. Consider Judge Friendly’s opinion in United States v. Benjamin, 328 F.2d 854 (2d Cir. 1964) and Judge Posner’s in Greycas v. Proud, 826 F.2d 1560 (7th Cir. 1987). Benjamin sustained the criminal conviction of a lawyer who had “shut [his] eyes to what was plainly to be seen,” namely that his services were being used by his client in “sickening” financial frauds. 328 F.2d at 854, 863. In Greycas, the lawyer, Theodore S. Proud, wrote a letter assuring a would-be lender that no prior liens existed on the collateral that Proud’s client was putting up for a loan. Proud relied on his client’s statement that no liens existed under circumstances that plainly suggested a need for further inquiry. The client was lying, and after he had defaulted on the loan, the court imposed substantial civil liability on Proud for “negligent misrepresentations that induce detrimental reliance.” 26 F.2d at 1565.
Similarly, in In re Dobson , 427 S.E.2d 166, 168 (S.C. 1993) , an attorney was sanctioned for signing blank documents that the client used to backdate 319 sham transactions and dodge SEC regulations. The court refused to countenance the “conscious avoidance of ethical duties.” Other cases similarly find that attorneys can be liable under securities law if they are reckless in not knowing that a client’s conduct is fraudulent.
The above cases would suggest that, to avoid liability, it is not necessarily enough for a lawyer simply to accept at face value a client’s assurances about the propriety of a transaction or the soundness of the client’s business—and that, if you reasonably suspect that your client is concealing material facts, you cannot adopt a “don’t ask, don’t tell” approach to client interviewing. 114 The Rules tend to support this interpretation. In general, the Rules require actual knowledge of client misconduct in order to trigger any ethical obligations. See Rule 1.0(f). But that knowledge may be inferred from circumstances, and occasionally courts and ethics committee have refused to absolve lawyers for closing their eyes to client misconduct. 115 Comment 3 to Rule 1.13 similarly provides that “a lawyer cannot ignore the obvious.”
2.When a regulatory agency requires corporations to disclose information, how adversarial may lawyers be in fending off regulators? This issue played a prominent role in the Kaye, Scholer matter. Noted legal ethicist Geoffrey Hazard gave an expert opinion on behalf of Kaye, Scholer maintaining that the firm was acting in the traditional role of litigation counsel in administrative or judicial proceedings that Lincoln reasonably anticipated. That role, he suggested, is one in which the lawyer’s obligations to third parties are at a minimum and obligations of confidentiality and zealous advocacy are at a maximum. According to Hazard, the standard governing what litigation counsel can say on behalf of their clients is set forth in Model Rule 3.1. This rule requires only that lawyers have a non-frivolous basis for any position that they assert. Under this standard, Hazard argued, Kaye, Scholer had behaved properly. 116
Another ethics expert, William H. Simon, took issue with Hazard’s position. In particular, Simon rejected the view that the ethical obligations of “litigation counsel” are only to refrain from taking frivolous positions:
Professional responsibility doctrine provides no support for this position whether or not we call the lawyers “litigation counsel.” The argument’s spurious force depends entirely on its disregard for the distinction between factual assertion and argument. Rule 3.1 and its “not frivolous” standard applies to the latter; it governs positions that counsel takes, not assertions containing information . In a pleading, brief, or argument in court, the lawyer refers to evidence that has been or will be presented to the tribunal. Argument involves assertions as to how this evidence should be interpreted or 320 characterized. . . . The dangers of deception are limited, and counsel can be given wide latitude. . . .
The situation is different if the lawyer provides information, especially under a disclosure duty. . . . In these situations, counsel’s task does not consist of suggesting characterizations for evidence of record but rather of providing information within their control in response to the other party’s requests. When counsel represent expressly or implicitly that they have provided all the information responsive to the request, they put their credibility in issue in ways that they do not in argument. 117
In response to Simon, Donald Langevoort objected:
Embedded in both the law of fraud and conventional legal ethics is a “tit for tat” norm of fair play that sometimes allows for Machiavellian behavior . . . [W]hen a relationship is adversary, law and ethics default to something closer to caveat emptor . . . . In other words, advocacy talk, of the sort commonly found in highly contested negotiations, is the accepted norm when a relationship is adversary. . . . 118
What is your view? Is a lawyer reporting client information to a regulatory agency like litigation counsel, and thus subject to the norms of the adversary system, or do regulatory contexts call for less spin and more candor?
3.Some commentators draw a distinction between gatekeeping and whistleblowing rules. A gatekeeping rule, such as Rule 1.2(d), prohibits lawyers from assisting in fraudulent conduct. Coupled with Rule 1.16(a), this gatekeeping rule requires lawyers to withdraw from representations whenever their involvement would further a client crime or fraud. If lawyers are essential to the transaction, their refusal to provide assistance “shuts the gate” before it can be completed. Another example of a gatekeeping rule is the 1989 Financial Institutions Reform, Recovery & Enforcement Act (FIRREA), which makes banking attorneys liable for large civil penalties and restitution payments if they knowingly or recklessly participate in violations of law, fiduciary duty, or unsafe and unsound banking practice. 119 A whistleblowing rule goes further. Not only must lawyers refuse to assist a crime or fraud, they must (or may) inform others of the misconduct, or divulge weaknesses in the client’s financial position. 120
In arguing against gatekeeping and whistleblowing requirements, some lawyers strongly object to being forced to police their clients. They often claim that it is unfair to mandate a standard of behavior that will be impossible to enforce and that less scrupulous members of the bar will not honor. The 321 result will be to place honest lawyers at a competitive disadvantage among clients looking for undivided loyalty.
Do you find this argument persuasive? How do you respond to the concern that taking this argument seriously will drive ethical standards to the lowest common denominator?
4.Reinier Kraakman cautions that attempting to regulate an industry by increasing the gatekeeping and whistleblowing obligations of lawyers or accountants will prove ineffective if members of the industry can easily switch to less scrupulous providers. 121 How significant is that concern? Could Lincoln Savings and Loan or Enron have replaced counsel without inviting unwelcome regulatory attention?
A related argument, developed by the New York City Bar, is that lawyers who have gatekeeping or whistleblowing obligations will be excluded from information channels, and may let their own concerns about avoiding liability skew their advice to clients. 122 How should this risk be balanced against the benefits of increasing lawyer’s responsibilities to investigate and prevent possible misconduct? To what extent should lawyers be asked to play gatekeeping and whistleblowing roles? 123
5.Investigators of business frauds sometimes report that the lawyers they interview are stunned to discover that the deals they worked on were fraudulent. Enron lawyers told investigators that they were proud of the cutting-edge deals they put together; somehow, they failed to recognize that the deals were illegal. Social psychology research suggests common patterns that may work against lawyers’ recognition of client misconduct. One such tendency is “cognitive conservatism.” Individuals are more likely to register and retain information when it is compatible with established beliefs or earlier decisions. A related phenomenon is reduction of “cognitive dissonance.” After making a decision, individuals tend to suppress or re-construe information that casts doubt on that decision. Accordingly, once lawyers have determined to represent a particular client, they may become less sensitive to ethical problems arising from that choice.
Other problems involve overconfidence and over-commitment. Those who obtain decisionmaking positions often have high confidence in their own capacities and judgment. That can readily lead to arrogance, over-optimism, and an escalation of commitment to choices that turn out to be wrong, either factually or morally. As a result, individuals may ignore or suppress dissent, overestimate their ability to rectify adverse consequences, and cover up mistakes by denying, withholding, or sometimes destroying information. An incremental slide into ever more dubious conduct can readily produce “the boiled frog” problem. As legend would have it, a frog thrown into boiling 322 water will jump out of the pot. A frog placed in tepid water that gradually becomes hotter and hotter will calmly boil to death. 124
Other cognitive processes push in similar directions. Individuals are more likely to retain information that reflects favorably on themselves and to form positive impressions of someone on whom their own success partly depends. So too, the very act of advocating a particular position increases the likelihood that proponents will themselves come to adopt that position. In many practice settings, these cognitive biases, together with financial self-interest, collegial pressure, and diffusion of responsibility skew ethical judgment. 125
How should ethical codes and civil liability rules respond to these psychological tendencies? Are they reasons to give the benefit of the doubt to lawyers who overlook client fraud? Or should regulatory structures seek to provide greater incentives for lawyers to identify and prevent client misconduct?
Assume that you were a senior partner with Singer, Hutner, Levine & Seeman under the circumstances in the O.P.M. case described briefly above and in more detail below. What would you have done?126
O.P.M., a computer leasing firm in the era before personal computers, obtained more than $210 million in fraudulent loans (the equivalent of $600 million in 2019 dollars). With those sizable loans, the two partners who owned O.P.M. bought computers that they then leased to other companies. Then, they used their existing leases as collateral for loans needed to buy additional computers. O.P.M. won a sizable market share by slashing its prices, but as a result, its revenues were too small to provide collateral for the new loans the partners needed. So the partners forged fake leases for much higher amounts—leases that their lawyers unknowingly presented to lenders as documentation. Every increase in their business required new computers, new loans, and new forgeries; incoming revenues went to service past loans. In essence, O.P.M. (the initials stood for Other People’s Money) was a pyramid scheme.
Most of these loans were negotiated and the paperwork processed by O.P.M.’s outside counsel, the law firm of Singer, Hutner, Levine & Seeman. A year before the two partners who ran O.P.M. were finally 323caught, their accountant warned Singer Hutner of the frauds. At this point, O.P.M. was generating 60 percent of the firm’s billings.
a)What should the firm have done at this point?
b)Singer Hutner engaged two legal ethics experts as consultants. On the basis of their advice, Singer Hutner continued to close new loans for O.P.M. A few months later, it became clear to Singer Hutner, partly as a result of one O.P.M. partner’s admissions, that $60 million of the new loans it had closed were fraudulent. What should the firm have done as soon as that information came to light?
c)On advice of the legal ethics experts, Singer Hutner gradually terminated its representation without informing O.P.M.’s new counsel that anything was amiss. Before the fraud finally unraveled, the new attorneys had unwittingly closed another $15 million in fraudulent loans for O.P.M. After the O.P.M. partners were convicted and sentenced to ten and twelve years in prison, Singer Hutner paid $10 million to settle a suit brought by defrauded lenders.127
d)What accounts for the law firm’s behavior? When Singer Hutner lawyers first learned of the frauds, they told their ethics consultants that the firm wanted to do what was proper but also wished, if possible, to continue representing O.P.M., its bread-and-butter client. In response, the consultants gave three crucial pieces of advice. First, because the frauds were past, Singer Hutner could not disclose them. Second, Singer Hutner had no obligation to “police” its client in order to make certain that the new loans it was closing were honest. Third, because Singer Hutner had no information positively suggesting that O.P.M.’s partners would continue the frauds (and the partners fervently assured the lawyers that they would not), the firm did not have to withdraw. How would you evaluate this advice based on today’s Rules?
e)Although Singer Hutner eventually insisted that the O.P.M. partners arrange to have customers send the law firm independent verifications of deals, the O.P.M. partners had little difficulty intercepting the verification forms and substituting forgeries.
When, several months later, Singer Hutner partners discovered that they had closed an additional $60 million in fraudulent new loans, the ethics consultants advised that these too had now become past frauds, and were therefore protected by the bar’s confidentiality rules. When Singer Hutner decided to withdraw, the consultants warned that a sudden resignation could violate the firm’s ethical responsibilities under the version of New York’s rules then in force: “A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client.”128 It followed from the 324consultants’ opinion that Singer Hutner could not reveal O.P.M.’s past frauds to successor counsel, even though the new counsel asked whether anything was amiss. Thus, Singer Hutner’s lawyers found themselves in the painful position of deceiving their successor counsel, who then closed additional fraudulent transactions.129
f)Singer Hutner lawyers claimed that, at no point in the O.P.M. history, did they clearly “know” that the loans it was closing were fraudulent. Do you find this excuse adequate? If the only way that Singer Hutner could have known about the loans it was closing was to police its own client, what should the firm have done?
g)At what step, if any, did Singer Hutner go wrong? Why? Would Rules giving lawyers the discretion but not the obligation to reveal frauds have made a difference? If not, what else might have been more effective?
References: Rules 1.2, 1.6, 1.16.
3.Disclosure to Secure Rule Compliance
It should be obvious that lawyers who face ethical dilemmas often need advice. Until the Model Rules’ 2002 revisions, however, there was no exception to confidentiality that would allow lawyers to seek advice outside their own law firms. The ABA rectified this omission by adding an exception in Rule 1.6(b)(4) “to secure legal advice about the lawyer’s compliance with these Rules.”
Another exception to confidentiality to enhance rule compliance was approved by the ABA in 2012. Now, Rule 1.6(b)(7) permits lawyers to reveal confidences in order “to detect and resolve conflicts of interest” when lawyers change jobs or restructure law firms. The Rule does not permit lawyers to reveal confidences if doing so might waive the attorney-client privilege “or otherwise prejudice the client.” Some ABA delegates objected that revealing confidences would be improper without client consent. The majority, however, accepted arguments that a client consent requirement would place young lawyers in an untenable position: They would not be able to look for a new job without informing their current employer that they were doing so.130
4.Disclosure to Establish a Claim or Defense on the Lawyer’s Behalf
One conspicuous exception to the bar’s passionate defense of confidentiality arises when a client sues a lawyer or files a grievance against a lawyer, or when a lawyer must sue a client to collect unpaid 325fees. The Rules provide, in such circumstances, that confidentiality may give way. Specifically, Rule 1.6(b)(5) provides:
(b)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . .
(5)to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
1.Comment 10 to Rule 1.6 explains:
The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
In other words, lawyers may reveal client confidences preemptively when a third party accuses them of complicity in client wrongdoing. Is that line-drawing justified? Should the lawyer at least have to wait until a proceeding has commenced?
2.Some have criticized the discrepancy between the bar’s otherwise-wholehearted embrace of confidentiality and the self-defense exception:
The same lawyer who is prohibited from disclosing information learned while representing a client to exonerate someone falsely accused of a capital crime, in other words, is perfectly free to disclose confidential information when he or she is the one accused, falsely or not. Nor is there any requirement that the lawyer’s liberty be at stake, or even that the lawyer be accused of anything criminal. A simple fee dispute with a client is sufficient grounds to disclose confidential information. The lawyer’s interest in collecting a fee is apparently a higher priority than exonerating an innocent defendant about to be convicted of a capital crime or helping a distraught family locate an abducted child. Confidentiality means everything in legal ethics unless lawyers lose money, in which case it means nothing.131
Are the bar’s priorities sensible? Is it proper, as one commentator has put it, to permit attorney disclosure of client confidences to collect a $500 fee—while 326forbidding the attorney from revealing secrets to protect the future victim of a massive securities fraud?132
3.May a lawyer secretly record conversations with a client because the lawyer mistrusts the client and foresees legal trouble “based upon conduct in which the client was involved” (in the words of Rule 1.6(b)(5))? This became a headline issue after Donald Trump’s attorney Michael Cohen revealed a tape he had secretly made of a confidential conversation with Trump to discuss hush-money payoffs to actress Stormy Daniels.133 Lawyer Cohen’s relationship with Trump had been deteriorating, and Cohen was under investigation about the payoff and other matters.134 President Trump tweeted, “What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before?”135 On the issue of lawyers secretly taping conversations (with non-clients as well as clients), state ethics opinions are divided: taping is considered permissible in twenty-two jurisdictions and is prohibited in sixteen, with thirteen having no stated opinion.136 Most states that prohibit secret taping argue that it is deceitful, and therefore prohibited by Rule 8.4(c); others find that it is deceitful only if the lawyer lies about the taping. None specifically address the issue when the person being taped is the client. Of course, lawyers owe special loyalty to clients—but what if the lawyer foresees that they may have to disclose client confidences for self-protection, as Rule 1.6(b)(5) permits?
5.Disclosure to Comply with a Court Order
What should a lawyer do when a court rules against an assertion of attorney-client privilege—for example, in a case involving client identity or tainted fees—and orders the attorney to reveal confidential information? Rule 1.6(b)(6) authorizes disclosure: it provides that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. . . . (6) to comply with other law or a court order.” Comment 15 further provides:
[15] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against 327disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.
Surprisingly, it was not always thus. An early draft of the Model Rules included a provision permitting lawyers to reveal confidences in order to comply with a court order. But the ABA House of Delegates rejected the provision, which was not restored until 2002—nearly twenty years later. In the intervening decades, lawyers and commentators searching for a way to allow lawyers to comply with court orders without violating Rule 1.6 argued that complying with court orders fell under the rubric of “disclosure . . . impliedly authorized in order to carry out the representation” (Rule 1.6(a)). Because the prohibition was circumvented, the deletion’s significance was more symbolic than practical—but the symbolism is important. It shows how profoundly reluctant the bar has been to permit disclosure—even when a court declares that the information has to be revealed.
Part of the fallout from the Enron affair and other accounting scandals in the early 2000s was the enactment of the Sarbanes-Oxley Act, a tough financial regulatory statute. Among other requirements, Sarbanes-Oxley imposed requirements on lawyers to report potential illegal activity by clients. (This is treated in detail in Chapter 11, Section A, infra.) To bring the Rules into alignment with Sarbanes-Oxley’s requirements, the ABA amended Rule 1.13—governing lawyers’ responsibilities when the client is an organization—to permit lawyers to disclose information, even when doing so would otherwise violate Rule 1.6. The amended Rule 1.13 permits a lawyer for an organization to disclose confidential information if:
1.The lawyer knows that someone in the organization is acting or intends to act unlawfully; and
2.the unlawful act might be imputed to the organization; and
3.the lawyer’s efforts to remedy the problem, including reporting it to the highest authority in the organization, are unavailing; and
4.“the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization” (Rule 1.13(c)(2)).137
If all four conditions are met, the lawyer may reveal confidential information “to the extent the lawyer reasonably believes necessary to 328prevent substantial injury to the organization.” Rule 1.13(c)(2). Earlier versions of this Rule did not permit lawyers to reveal confidences; instead, they merely permitted lawyers to resign.
Note that Rule 1.13 differs significantly from 1.6(b). The latter permits some adverse disclosures—it permits limited disclosures despite the attorney’s duty of loyalty to the client. In contrast, Rule 1.13 permits what some call “loyal disclosures.” In Rule 1.13, disclosure is justified because of the lawyer’s duty of loyalty to the organizational client; the lawyer must speak in order to shield the client-organization from substantial injury. The specific provisions of the two rules highlight this difference: Whereas Rule 1.6(b)(2) and (3) permits disclosure to protect third parties (preventing “substantial injury to the financial interests or property of another”), Rule 1.13(c)(2) permits disclosure only to prevent harm to the client (preventing “substantial injury to the organization”).
The client-fraud cases we examined above presented a context—the representation of clients in a heavily regulated industry—in which lawyers’ duties of confidentiality were complicated by federal law mandating disclosure of sensitive client information, for example to the SEC or to bank examiners. This is not by any means unusual: The law often creates special disclosure obligations that may affect the lawyer’s professional responsibilities. What this means in practice is that a lawyer’s decisions about when to preserve client confidences may involve the interaction of several different bodies of law. For analytical purposes, we have found it useful to distinguish between the ethical requirement of confidentiality and the law of attorney-client privilege, but in real life, lawyers will have to consider them in tandem, alongside any other bodies of law that bear on disclosure obligations. We conclude this chapter with two problems requiring analysis along these dimensions.
Francis Belge and Frank Armani, New York attorneys, were appointed to defend Robert Garrow on charges of murder. During the course of representation, Garrow revealed to them that he had also committed several rapes and two other unsolved murders. He told them the location of the victims’ bodies. Belge and Armani confirmed the locations and photographed the bodies in the unsolved murders. The lawyers kept this information to themselves, despite the pleas of the frantic parents of the missing murder victims, who correctly surmised that Garrow may have killed their daughters and that Garrow’s attorneys knew one way or the other. The information finally came out ten months later during Garrow’s trial, when Garrow publicly confessed to the rapes and unsolved murders. Belge and Armani hoped to use Garrow’s public confession to help establish an insanity defense. Earlier, 329during secret plea negotiations with the District Attorney, Belge and Armani had suggested that they could provide information concerning two unsolved murders in return for a favorable plea bargain.
Belge and Armani were subsequently indicted for violating two sections of a New York public health law which require, respectively, that a decent burial be accorded to the dead and that anyone knowing of the death of a person without medical attendance report the fact to the proper authorities. After that indictment was dismissed, the New York Bar Association Committee on Professional Ethics was asked to consider whether the lawyers had violated relevant ethics rules.
a)You are a member of the Committee. What is your recommended disposition? (For purposes of considering this question, use Rule 1.6, above.)
b)Suppose Belge and Armani had learned the information from a source other than their client. Would their obligations have been different?
c)Alternatively, assume that Belge and Armani knew that another person had been wrongly charged with kidnapping one of the victims. If Garrow had not wanted his guilt revealed in plea negotiations, what would their responsibilities have been?
d)What if there had been no plea negotiations and the attorneys had anonymously informed the authorities of the location of the bodies? Would the appropriateness of their conduct have depended on whether investigators were able, or might have been able, to link Garrow to the murders?
e)What should Belge and Armani have done if they had strongly suspected that Garrow would attempt other assaults or dispose of the victims’ bodies while on bail?
References: Rules 1.2, 1.6, 3.3, 3.4, 1.16.
1.Problem 4 is based on a case from Syracuse, New York in 1975. In it, Belge and Armani faced an agonizing decision but felt themselves bound by the duty of confidentiality, and they revealed the location of the bodies only when they believed that doing so would be to their client’s advantage. The result was (in the words of Lord Brougham, quoted in Chapter 3) to compound the “alarm” of the community and the “torments” of the victims’ families, but at great “hazards and costs” to the lawyers themselves; their reputations were shattered and their lives were threatened. Was this the proper approach?
2.In dismissing the indictment against Belge, the New York trial court concluded that the information was privileged and applauded counsel for acting with “all the zeal at [his] command to protect the constitutional rights of his client.” In so holding, the court acknowledged that its task would have been “much more difficult” had Belge been indicted for obstructing justice 330 rather than circumventing the “trivia of a pseudo-criminal statute.” People v. Belge , 372 N.Y.S.2d 798, 803 (1975) . The appellate court, while affirming dismissal of the indictment, expressly declined to reach the “ethical questions” underlying the case. It did, however, voice “serious concern” as to invocation of the attorney-client privilege in a context where counsel had obligations dictated not only by the applicable ethics rules but by “basic human standards of decency.” People v. Belge , 376 N.Y.S.2d 771, 772 (1975) .
Although a jury convicted Garrow of murder, public sentiment against Belge and Armani ran high. Even before the trial, they received death threats, and afterward their practices encountered severe difficulties. Armani had to dismiss two associates and three secretaries; Belge left for St. Croix, in the Virgin Islands. 138 Several years after the Garrow case, a television documentary, “Ethics on Trial,” profiled Armani and others involved in the proceedings. The District Attorney who prosecuted Garrow acknowledged that disclosure of the bodies could have led to incriminating information, and defended the decision of Garrow’s counsel to maintain confidentiality. What was “reprehensible,” he believed, was Armani’s and Belge’s attempt to use the information about Garrow’s past crimes to bargain for an insanity plea that would have put the defendant back on the street. This, he maintained, was inconsistent with a lawyer’s role as an officer of the court.
In a television interview, Armani reflected on his dilemma, which he understood in rather different terms than did the District Attorney:
Armani: This was something that was really momentous for us because of the conflict within us. Your mind screaming one way “Relieve these parents [of the murder victims]!” You know—what is your responsibility? Should you report this? Shouldn’t you report it? One sense of morality wants you to relieve the grief.
Interviewer: And the other?
Armani: The other is your sworn duty . . .
Interviewer: Didn’t you think that there was a factor of just common decency here?
Armani: I can’t explain it—but to me it was a question of which was the higher moral good.
Interviewer: Between what?
Armani: The question of the Constitution, the question of even a bastard like him having a proper defense, having adequate representation, being able to trust his lawyer as to what he says.
Interviewer: As against what?
Armani: As against the fact that I have a dead girl, the fact that her body’s there. As against the breaking hearts of her parents. But they are—[pause]. It’s a terrible thing to play God at that moment, but in my judgment—and I still feel that way—that their suffering 331is not worth jeopardizing my sworn duty or my oath of office or the Constitution.139
3.After his conviction on the initial murder charge, Garrow pled guilty to the other offenses in exchange for a concurrent sentence. He then sued Belge and Armani for several million dollars based on allegedly ineffective assistance of counsel, and sued the state for $10 million based on allegedly improper medical treatment of wounds he sustained while being captured by police. In exchange for dropping the claims against the state, he received a transfer to a medium security correctional facility for elderly and handicapped prisoners. The security proved inadequate to his talents and he escaped shortly after his transfer.
The police then asked Armani for any information that might help recapture his former client. According to Armani’s subsequent account of the case, he attempted to
recall some of the tactics Garrow had told him about using to elude the police. “He once told me that he would hole up in the underbrush until the cops gave up the search in that area and pulled out. . . . That’s how he broke out of [an earlier police dragnet].” 140
Based in part on that information, police concentrated search efforts on the underbrush near the prison. As they approached his cover, Garrow fired on the patrol. They fired back, and he was killed instantly.
Did Armani breach any ethical rules in disclosing confidential information about Garrow’s past tactics for eluding police? Was Armani obligated—morally or legally—to volunteer what he knew? What would you have done?
4.As it turns out, Armani had his own reasons for wanting to make sure Garrow was recaptured. Garrow’s escape terrified him, because of a chilling moment that had occurred during Garrow’s trial. Armani’s wife and his daughter Dorina came to court to watch the trial, and Garrow greeted Dorina by name. Surprised, Armani asked Dorina how she knew Garrow, and she replied that she didn’t. At that moment, Armani realized that at some point, Garrow had been stalking Dorina as he had stalked his other rape and murder victims. 141 Now, Garrow was loose. Should the risks to Dorina have affected Armani’s disclosure responsibilities?
5.The New York trial court stated that it might have had difficulty dismissing obstruction of justice charges against the two lawyers. How can keeping a client’s confidences be obstruction of justice? Compare the Cueto case in Chapter 4. Were Belge’s and Armani’s motives comparable to Cueto’s?
332You represent an executive in her divorce. She and her husband have two children, ages four and ten. Currently, your client is romantically involved with another man, Shane. You have negotiated a temporary joint custody arrangement pending the final divorce settlement. For the past few weeks, your client has had sole custody of the children while her husband is out of town making new living arrangements for his elderly mother.
Ten days ago, you telephoned your client at home to discuss the ongoing divorce negotiations. Her ten-year-old daughter answered the phone and said that her mother was not home. To your dismay, you learned from her that her mother had left her and her younger sister alone for more than twenty-four hours, while the mother stayed with Shane. You reached your client on her cell phone, and explained to her that leaving small children alone, as she had done, may constitute neglect. Not only could it harm her custody request, neglect is a criminal violation—to say nothing of the danger of leaving the children unaccompanied. Your client explained that the ten-year-old is exceptionally mature and capable, and that she had left meals for the children.
This week, however, you telephoned your client’s home at 7 a.m., hoping to reach her before she left for the day, because she needed to sign some documents. Once again, the ten-year-old answered the telephone and told you that her mother was not there. When you eventually spoke with your client, she explained that she had spent the night caring for Shane, who had flu. She did not bring the children with her because she did not want to expose them to the virus. You warned her that leaving the children unattended is neglect even if her motives were commendable.
Today, you received a call from your client, who informed you that the four-year-old had been treated for minor burns she received while being bathed by her sister. Running the bath, the ten-year-old had turned on the hot water tap before the cold and scalded the younger child. You asked your client bluntly whether she was home at the time. Instead of answering, however, she became angry, and told you to mind your own business. She had called, she said, only to alert you to an incident her husband might raise in the ongoing divorce negotiations—not to get a lecture from her own lawyer about how to live her life.
In your state, child neglect is a misdemeanor punishable by a $1000 fine and/or up to a year in jail. The statute defines criminal neglect as “knowing failure to provide ordinary and proper care and attention” to a child. Furthermore, the state has enacted a Child Abuse and Neglect Reporting Act. The Act requires any person other than a health practitioner “who has reason to believe that a child has been subjected to abuse or neglect” to report the evidence to the Department of Child 333Welfare. However, the Act specifically exempts from this obligation anyone who “would be (a) disclosing matter communicated in confidence by a client to the client’s attorney or other information relating to the representation of the client; or (b) violating the attorney-client privilege.” One more legal rule seems relevant: Unlike the Model Rules, your state permits, but does not require, lawyers to reveal otherwise-confidential information necessary to prevent a client from committing any crime. Furthermore, your state’s rule permits disclosure of confidences when necessary to rectify a client crime or fraud in which the lawyer’s services were used.
a)What are your obligations under the Child Abuse and Neglect Reporting Act? In upcoming settlement negotiations with the husband’s attorney? In future dealings with the court?
b)What would you do?
References: Rules 1.6, 3.3, 4.1, 1.16.
1See Chapter 12, infra.
2See Chapter 9, Section B.2, infra.
3See Chapter 11, infra.
4The ABA’s 1969 Code of Professional Responsibility also protects a broader category of material than the privilege. It encompasses all “information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR 4–101(A). Several important jurisdictions, such as the District of Columbia and New York state, follow this older rule. The Code protects such categories of information from disclosure to anyone in any setting, apart from the few exceptions noted in DR 4–101(C).
5Once a court determines that information is not protected by the attorney-client privilege, it may order the lawyer to divulge the information. Once that happens, the confidentiality rules do permit disclosure, under Rule 1.6(b)(6), which provides: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . to comply with other law or a court order.”
6John H. Wigmore, 8 Wigmore on Evidence § 2292, at 554 (John T. McNaughton rev. ed. 1961).
7United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
8See Rule 1.18(b) (discussing the protections afforded prospective clients).
9Restatement (Third) of the Law Governing Lawyers §§ 68–72 (2000).
10See also id. §§ 78–80.
11United States v. MIT, 129 F.3d 681, 684 (1st Cir. 1997).
12Effective as of 2008, Rule 502 “seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection.” To date there has been little significant case law on its scope and effect. Fed. R. Evid. 502, Advisory Committee Notes (revised, Nov. 28, 2007).
13See generally John G. Browning, The New Duty of Digital Competence: Being Ethical and Competent in the Age of Facebook and Twitter, 44 U. Dayton L. Rev. 179 (2019).
14Rule 1.1, cmt. 8.
15ABA Formal Op. 477 (2017), at 6.
16 Harleysville Ins. Co. v. Holding Funeral Home, 2017 WL 1041600 , at*5 (W.D. Va. 2017). For examples of electronic discovery where courts found that counsel had not taken reasonable precautions, see Conceptus, Inc. v. Holologic, Inc., 2010 WL 3911943 (N.D. Cal. 2010) (inadequate review of large number of documents); Rhoads Indus., Inc. v. Building Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008) (privileged communications in email chains).
17In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 303 (6th Cir. 2002).
18In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).
19Ecuadoran Plaintiffs End Fraudulent Litigation Against Chevron, CSRWire, July 10, 2019, https://www.csrwire.com/press_releases/42208-Ecuadorian-Plaintiffs-End-Fraudulent-Litigation-Against-Chevron.
20In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990); see also Restatement (Third) of the Law Governing Lawyers § 76 (2000).
21In re Grand Jury Proceedings, 791 F.2d 663, 665 (8th Cir. 1986).
22United States v. KPMG LLP, 316 F. Supp. 2d 30 (D.D.C. 2004); United States v. Jenkins & Gilchrist, P.C., 2004 WL 870824 (N.D. Ill. 2004).
23McCormick on Evidence § 87, at 120–21 (John W. Strong ed., 4th ed. 1992).
24Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351, 380–83 (1989).
25Leslie C. Levin, Testing the Radical Experiment: A Study of Lawyer Responses to Clients Who Intend to Harm Others, 47 Rutgers L. Rev. 81, 122–23 (1994). For overviews of the critiques of broad confidentiality rules, see Deborah L. Rhode, In the Interests of Justice 106–14 (2001); William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics 54–62 (1998), David Luban, Lawyers and Justice: An Ethical Study 177–97 (1988).
26Wigmore, supra note 6, at 552, § 2291.
27See Ronald J. Allen et al., A Positive Theory of the Attorney-Client Privilege and the Work Product Doctrine, 19 J. Legal Stud. 359, 371 (1990).
28Wigmore, supra note 6, at 552.
29Id. at 553.
30For further discussion, see Restatement (Third) of the Law Governing Lawyers § 68, cmt. c (2000).
31The case does not have a happy ending. Macumber was finally released from prison in November 2012, after the Arizona Justice Project raised substantial doubts about his guilt. Soon after his release, however, the seventy-nine-year-old Macumber was convicted of two counts of sexual assault on a child. Of the latest chapter, his son explained: “I believe he’s still innocent of the murders. But I know for a fact he’s not the man I thought he was.” Stephanie Slifer, Arizona Ex-Con Convicted of Colorado Sex Assault, CBS News, Nov. 24, 2014. Macumber died in prison in 2017.
3226-Year Secret Kept Innocent Man in Prison, CBS News (Mar. 6, 2008), https://www.cbsnews.com/news/26-year-secret-kept-innocent-man-in-prison/.
33In another example, a teenage boy, Jesus Fornes, confessed to a priest and lawyer that he had killed a man. Two innocent boys had been convicted of the crime. The priest urged Fornes to confess; the lawyer convinced him to remain silent. After Fornes died eight years later, the truth came out, and the innocent boys were released. The lawyer defended his conduct on the grounds that Fornes “was going to throw his whole life away by going to court and saying he did it.” Robert F. Cochran, Moral Discourse, Nat’l L.J., Oct. 15, 2001, at 25.
34See Restatement (Third) of the Law Governing Lawyers § 85(c) (2000) (providing that, in a proceeding involving a dispute between an organizational client and shareholders, members, or other constituents, the privilege may be withheld from otherwise-privileged communications if the tribunal finds that “the need of the requesting party to discover or introduce the communication is sufficiently compelling and the threat to confidentiality sufficiently confined to justify setting the privilege aside”).
35Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 Cal. L. Rev. 1061 (1978).
36Although most courts hold that wrongful intent without action is sufficient to trigger the crime-fraud exception, a minority position, endorsed by the Restatement, maintains that the crime-fraud exception should apply only if the client later accomplishes the wrongful purpose. A contrary view, the Restatement argues, would penalize clients for consulting lawyers and being talked out of wrongful plans. Restatement (Third) of the Law Governing Lawyers § 82(a), cmt. c (2000). The influential D.C. Circuit is the most prominent court to follow the Restatement position. See In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997).
37Paul R. Rice, Attorney-Client Privilege in the United States § 8.2, at 26 (1999).
38In re Grand Jury Investigation, 2017 WL 4898143 (D.D.C. 2017).
39In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979), provides a lucid explanation of this point.
40Clark v. United States, 289 U.S. 1, 14 (1933).
41Nesse v. Pittman, 202 F.R.D. 344, 351 (D.D.C. 2001).
42In re Sealed Case, 107 F.3d 46, 50 (D.C. Cir. 1997).
43Charles A. Wright & Kenneth W. Graham Jr., 24 Federal Practice & Procedure: Evidence § 5501 (1st ed. 1986).
44In camera review is review in chambers, out of sight of the party seeking disclosure.
45Haines v. Liggett Group, Inc., 140 F.R.D. 681, 684 (D.N.J. 1992).
46In re A.H. Robins Co., 107 F.R.D. 2, 14–15 (D. Kan. 1985).
47Order Regarding Privilege and the Crime Fraud Exception and Setting Forth Procedures to Determine Privilege Beginning with the Liggett Documents, State ex rel. Humphrey v. Philip Morris, Inc., 1997 WL 33635815 (D. Minn. 1997).
48Id. at 3–11.
49Id. at 11.
50Alison Frankel, Stubbing Out the Privilege, Am. Law., June 1998.
51 Id.
52Comment by the general counsel of a large corporation, ILEC East Conference, Tokyo, Japan (Mar. 9, 2019).
53Ellen S. Podgor, Criminal Fraud, 48 Am. U. L. Rev. 729, 740 (1999).
54U.S. Dep’t of Justice, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (2002).
55Black’s Law Dictionary 670–71 (7th ed. 1999).
56Charles Wolfram, Modern Legal Ethics 280 (1986).
57See, e.g., In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984); but cf. Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (declining to extend the crime-fraud exception to torts).
58In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982).
5928 C.F.R. § 501.3(d).
60John Schwartz & Benjamin Weiser, Judge Allows Trial in Terrorist’s Challenge to Prison Rules, N.Y. Times, Oct. 4, 2011, at A23.
6118 U.S.C. § 3142(e), (i).
62ABA Criminal Justice Section and Task Force on Terrorism and the Law, letter from Robert E. Hirshon to General Counsel, Rule Unit, Bureau of Prisons, Dec. 28, 2001.
63Id.; cf. Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13 (D.D.C. 2003) (finding that the prisoner did not have standing to challenge the monitoring provision); Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004) (ruling, in a slightly different context, that the government could not abrogate habeas petitioners’ attorney-client privilege by engaging in real time monitoring of meetings between the petitioners and their counsel). A parallel issue arose in connection with the Guantánamo military commissions. In December 2011, Rear Admiral D. B. Woods, the commander of the Guantánamo base, issued an order requiring a review by a privilege team of written correspondence between defense counsel and their clients. In response, Marine Col. Jeffrey P. Colwell, the head of military defense counsel, ordered defense counsel not to comply with Admiral Woods’s order because it would violate the attorney-client privilege. E-mail to defense counsel from Col. Jeffrey Colwell, Chief Defense Counsel, Jan. 8, 2012, available at http://www.aclu.org/files/assets/colwell_email_on_attorney-client_communication_monitoring_at_guantanamo.pdf.
64Arun Rath, Senior Official Confirms Audio Monitoring Devices at 9/11 Tribunal, PBS Frontline, Feb. 13, 2013, available at http://www.pbs.org/wgbh/frontline/article/senior-official-confirms-audio-monitoring-devices-at-911-tribunal/. See also Mark Denbeaux et al., Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship (2011), available at https://ssrn.com/abstract=3359921.
65Charlie Savage, Guantánamo Lawyers Challenge Government’s Explanation of Hidden Microphone, N.Y. Times, March 12, 2018.
66In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019).
67See Rule 1.13.
68The control group test originated in City of Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 483 (E.D. Pa. 1962).
69572 F.2d 596, 609 (8th Cir. 1977) (citing Harper & Row Publishers v. Decker, 423 F.2d 487, 491–92 (7th Cir. 1970), aff’d by an equally divided Court, 400 U.S. 348 (1971)).
2The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications.
70William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 Fordham L. Rev. 1453, 1468 (2006).
71David Simon, The Attorney-Client Privilege As Applied to Corporations, 65 Yale L.J. 953, 955–56 (1956).
72Wolfram, supra note 56, at 283–84; see also Luban, supra note 25, at 228–33.
73This last proposition is forcefully defended in Steven Shavell, Legal Advice About Contemplated Acts: The Decision to Obtain Advice, Its Social Desirability, and Protection of Confidentiality, 17 J. Legal Stud. 123 (1988).
74For further discussion, see Luban, supra note 25, at 222–28; John E. Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U. L. Rev. 443 (1982).
75Dan Clark, Disciplinary Counsel to Justices: Ex-Penn State GC Baldwin Deserves Censure for ‘Betrayal of Her Clients,’ Legal Intelligencer, Sept. 10, 2019, https://www.law.com/thelegalintelligencer/2019/09/10/attorneys-argue-over-whether-former-penn-state-general-counsel-should-be-censured-402-49418/.
76Bruce A Green & David C. Clifton, Feeling a Chill, ABA J., Dec. 2005, at 61, 63–64. For a time, other regulatory and prosecutorial agencies adopted similar policies. Id. at 64 (discussing the New York Attorney General’s office and the New York Stock Exchange).
77See http://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/privilegewaiver/2003jan20_privwaiv_dojthomp.authcheckdam.pdf.
78Justice Manual § 9.28–720 (last updated Nov. 2017).
79Thomas Brom, Read My Lips, Cal. Lawyer, April 2006, at 12; Susan L. Merrill, Internal Investigations, in Securities Litigation: Planning and Strategies 91, 100, 101 (2002).
80Julie R. O’Sullivan, The Last Straw: The Department of Justice’s Privilege Waiver Policy and the Death of Adversarial Justice, 57 DePaul L. Rev. 329, 332–34 (2008); Daniel Richman, Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, 57 DePaul L. Rev. 295, 305 (2008).
81O’Sullivan, supra note 80, at 335.
82Mark A. Kressel, Note, Contractual Waiver of Corporate Attorney-Client Privilege, 116 Yale L.J. 412 (2006) (arguing that directors and corporations should contract to allow waiver before the situation arises, and, in the absence of such an agreement, directors should not be allowed to assert the defense).
83Menasha Corp. v. U.S. Dep’t of Justice, 707 F.3d 846, 847 (7th Cir. 2013). For more on the work-product doctrine, see Restatement (Third) of the Law Governing Lawyers §§ 87–90 (2000); 8 C. Wright, A Miller & R. Marcus, Federal Practice and Procedure §§ 2022–28 (3d ed. 2013).
84Fed. R. Civ. P. 23(b)(3)(A)(ii). In state systems, the work-product doctrine is typically defined by statute or by court rule; these statutes and rules are often modeled on Rule 26(b)(3).
85Id. 23(b)(3)(B).
86Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 735–36 (N.D. Ill. 2014) (citations and internal quotation marks omitted).
87Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1337–39 (11th Cir. 2018); Moody v. I.R.S., 654 F.2d 795, 799–801 (D.C. Cir. 1981).
88L. Ray Patterson, Legal Ethics and the Lawyer’s Duty of Loyalty, 29 Emory L.J. 909, 941–42 (1980).
89Rule 1.9(c)(1). Rule 1.18(b) affords the same protection to prospective clients.
90ABA Formal Op. 179 (2017).
91Rule 1.6(b)(2).
92P.M. Brown, D.T. Zeit & B. Sobolev, The Risk of Rupture in Untreated Aneurisms: The Impact of Size, Gender, and Expansion Rate, 37 J. Vascular Surgery 280 (2003).
93Roger C. Cramton & Lori P. Knowles, Professional Secrecy and Its Exceptions: Spaulding v. Zimmerman Revisited, 83 Minn. L. Rev. 63, 126 (1998); see Roger Cramton, Spaulding v. Zimmerman: Confidentiality and its Exceptions, in Legal Ethics: Law Stories 175 (Deborah L. Rhode & David Luban eds., 2006).
94Cramton & Knowles, supra note 93, at 69.
95Id. at 74.
96Id. at 201.
97James E. Moliterno, Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another?, 38 Hastings Const. L.Q. 811, 825 (2011).
98Cal. Rules of Prof’l Conduct R. 1.6(b).
99Conn. Rules of Prof’l Conduct R. 1.6(b) (emphasis added).
100Iowa permits disclosure if harm is reasonably certain and requires disclosure to prevent imminent death or substantial bodily harm.
101For a riveting book-length treatment of such a case, with sophisticated discussion of the ethical issues, see David Mellinkoff, The Conscience of a Lawyer (1974).
102See N.Y. City Bar, Comm. on Prof’l Responsibility, Proposed Amendment to Rule of Professional Conduct 1.6—Authorizing Disclosure of Confidential Information of Deceased Clients (2010) (advocating the provision’s adoption, while summarizing opposition). For more on the prosecutor’s post-conviction obligations of disclosure and investigation, see Rule 3.8, discussed in Chapter 8. For more on confidentiality and wrongful incarceration, see Peter A. Joy & Kevin C. McMunigal, Confidentiality and Wrongful Incarceration, 23 Crim. Just. 46 (2008).
103Moliterno, supra note 97, at 823–24.
104Geoffrey C. Hazard, Jr., Lawyers and Client Fraud: They Still Don’t Get It, 6 Geo. J. Legal Ethics 701, 720 (1993).
105Id. at 706–07.
106Id. at 720.
107SEC v. Nat’l. Student Mktg. Corp., 457 F. Supp. 682, 712–17 (D.D.C. 1978). See Susan P. Koniak, When the Hurlyburly’s Done: The Bar’s Struggle with the SEC, 103 Colum. L. Rev. 1236, 1248–56.
108See Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 Law & Soc. Inquiry 677 (1989).
109Lincoln Sav. & Loan Ass’n v. Wall, 743 F. Supp. 901, 920 (D.D.C.1990).
110Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 Conn. L. Rev. 1185 (2003) (excerpted in Chapter 10 infra).
111In re Enron Corp., Final Report of Neal Batson, Court-Appointed Examiner, Appendix C (Role of Enron’s Attorneys).
112For a more recent case involving a lawyer who was convicted of criminally assisting a client, see Peter J. Henning, Putting Lawyers in the Cross-Hairs, N.Y. Times, Nov. 11 2010; Peter J. Henning, Punishing Lawyers in Corporate Frauds, N.Y. Times, Jan. 19, 2010.
113Ass’n of the Bar of the City of N.Y., Report on the Lawyer’s Role in Corporate Governance 26–29 (2006).
114See David Luban, Contrived Ignorance, 87 Geo. L.J. 957 (1999); Rebecca Roiphe, The Ethics of Willful Ignorance, 24 Geo. J. Legal Ethics 187, 216 (2010).
115Roiphe, supra note 114, at 197.
116Summary of the Expert Opinion of Geoffrey C. Hazard, Jr. (Feb. 25, 1992), reprinted in The Attorney-Client Relationship After Kaye, Scholer 381, 394–402 (1992).
117William H. Simon, The Kaye-Scholer Affair: The Lawyer’s Duty of Candor and the Bar’s Temptations of Evasion and Apology, 23 Law & Soc. Inquiry 243, 271 (1998).
118Donald C. Langevoort, What Was Kaye Scholer Thinking?, 23 Law & Soc. Inquiry 297, 298–99 (1998).
119Pub. L. No. 101–73, § 907, 103 Stat. 183, 473 (1989).
120Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. Econ. & Org. 53 (1986).
121Id. at 72–74.
122Ass’n of the Bar of the City of N.Y., supra note 113, at 5, 57–64.
123For further discussion, see Fred C. Zacharias, Coercing Clients: Can Lawyer Gatekeeper Rules Work?, 47 B.C. L. Rev. 455 (2006); John Coffee, The Attorney as Gatekeeper: An Agenda for the SEC, 103 Colum. L. Rev. 1293 (2003); Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, 74 Fordham L. Rev. 983 (2005).
124The “boiled frog” legend has been discredited, but the metaphor remains useful.
125See, e.g., Deborah L. Rhode, Moral Counseling, 75 Fordham L. Rev. 1317 (2006); Donald C. Langevoort, The Organizational Psychology of Hyper-Competition: Corporate Irresponsibility and the Lessons of Enron, 70 George Wash. L. Rev. 968 (2002); Donald C. Langevoort, The Epistemology of Corporate-Securities Lawyering: Beliefs, Biases and Organizational Behavior, 63 Brook. L. Rev. 629 (1997).
126Note that the lawyers practiced in New York while it was governed by the Code of Professional Responsibility. Consider what your answers would be under the Rules.
127This account is drawn from Stuart Taylor, Jr., Ethics and the Law: A Case History, N.Y. Times Mag., Jan. 9, 1983, at 31 and OPM Leasing Services, Inc., in The Social Responsibilities of Lawyers 184 (Philip B. Heymann & Lance Liebman eds., 1988).
128N.Y. Code of Prof’l Responsibility DR 2–110(A)(2).
129Ironically, but perhaps tellingly, the successor counsel was the same lawyer who later spearheaded Kaye, Scholer’s efforts on behalf of Charles Keating.
130Ethics 20/20 Rule Changes Approved by ABA Delegates with Little Opposition, ABA/BNA Lawyers’ Manual on Prof’l Conduct (Aug. 15, 2012).
131Daniel R. Fischel, Lawyers and Confidentiality, 65 U. Chi. L. Rev. 1, 10 (1998).
132The question is paraphrased from Brian R. Hood, Note, The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the Death of the Client, 7 Geo. J. Legal Ethics 741, 758–59 (1994).
133Chris Cuomo et al., Exclusive: CNN Obtains Secret Trump-Cohen Tape, CNN Politics, July 25, 2018, https://www.cnn.com/2018/07/24/politics/michael-cohen-donald-trump-tape/index.html.
134Ben Protess et al., How Michael Cohen Turned Against President Trump, N.Y. Times, Apr. 27, 2019.
135Cuomo et al., supra note 133.
136John Bliss, The Legal Ethics of Secret Client Recordings, Geo J. Legal Ethics (forthcoming 2020).
137Utah Rules of Prof’l Conduct R. 1.13.
138See Lawyer-Client Privilege Gets Severe Test, 64 A.B.A. J. 664 (1978).
139Ethics on Trial (WETA-TV video 1987).
140Tom Alibrandi with Frank H. Armani, Privileged Information 199 (1984). In addition to this memoir, the Lake Pleasant case was the subject of a 2016 Radiolab podcast, The Buried Bodies Case, June 3, 2016, at https://www.wnycstudios.org/podcasts/radiolab/articles/the_buried_bodies_case.
141Id. at 157.
Judicial Controls of Adversarial Abuses
This Chapter explores tactics in adversarial litigation—when the aim of seeking every advantage for one’s client may collide with a lawyer’s other (sometimes greater, sometimes lesser) obligations to the legal system and to society as a whole.
A.Frivolous Litigation and Improper Filings
One aspect of adversarial litigation involves the selection of cases to file. A key question is the following: When, exactly, is a case such a longshot that even filing the claim entails a breach of the lawyer’s professional obligations? The answer is provided, mostly, by Federal Rule of Civil Procedure 11, which requires lawyers to certify that their filings are not frivolous or harassing, and permits courts to sanction lawyers who violate its prohibitions.
Initially enacted in 1938, Fed. R. Civ. P. 11 was, for decades, close to a dead letter: Between 1950 and 1983, fewer than sixty cases involving Rule 11 sanction motions were reported. Then, in 1983, seeking to “streamline the litigation process by lessening frivolous claims or defenses,” the Federal Rules Advisory Committee expanded Rule 11 to give it sharper teeth and a longer reach.1 Among other things, it made sanctions for frivolous filings mandatory rather than discretionary (so judges were obliged to sanction lawyers in certain situations) and clarified courts’ authority to impose a wide range of sanctions, including costs and attorneys’ fees, payable to the aggrieved party. The effort worked. From 1983 through 1993, a whopping 7,000 sanctions decisions were reported.2 Further, evidence suggests that, consistent with the Advisory Committee’s goals, the 1983 version of the rule induced lawyers to engage in a more rigorous pre-filing investigation of claims and also tamped down on certain exaggerations and blanket denials.3
But that is not the end of the story. The beefed-up version of Fed. R. Civ. P. 11 not only worked, it arguably worked far too well—and ultimately, a provision created to curb adversarial excesses morphed into a new source of them. Research reveals that the 1983 version of the Rule incentivized wasteful satellite litigation, exacerbated tensions between counsel, impaired relationships between counsel and clients, deterred 336lawyers from pursuing novel legal theories, and chilled even meritorious litigation. Worse, most studies suggest that the 1983 version of Rule 11 was biased. As compared to their defense-side counterparts, individual plaintiffs were more often the target of Rule 11 motions, and judges imposed sanctions on plaintiffs at unusually high rates.4 Plaintiffs seeking relief for civil rights violations and employment discrimination bore the brunt of this “reform.”
In response to these and other difficulties, Fed. R. Civ. P. 11 was again amended in 1993, creating the provision in place today. The core of the amended Rule 11 reads:
(b)Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1)it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2)the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3)the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4)the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.5
Part (c), which addresses sanctions, provides:
(1)In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
337Stepping back, Rule 11 is directed at three abuses of the litigation process:
Typically, an adversary will move for Rule 11 sanctions, but a court can also impose sanctions on its own initiative. Several other features of Rule 11 are also worth highlighting:
The language of Fed. R. Civ. P. 11 parallels and partially replicates the language of Rule 3.1, titled “Meritorious Claims and Contentions.” Rule 3.1 explicitly enjoins a lawyer from “frivolous” actions, and defines frivolity in language nearly identical to Fed. R. Civ. P. 11: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Comment 2 to Rule 3.1 adds the following:
[2]The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
1.One empirical question underlying both Fed. R. Civ. P. 11 and Rule 3.1 is: How big of a problem is frivolous litigation? Many suggest that frivolous claims clog our courts. But the empirical evidence on this point is thin—and, if anything, tends to point in the opposite direction. A survey by the Federal Judicial Center found that 85 percent of U.S. District Court judges reported that “groundless litigation” was either “no problem” or was a small or very 339small problem. Only 3 percent of judges reported that it was a large or very large problem.8
2.As noted, there is substantial overlap between Fed. R. Civ. P. 11 and Model Rule 3.1 This begs the question: Is a Fed. R. Civ. P. 11 violation automatically a violation of professional ethics as well? Should every Rule 11 sanction be accompanied by a disciplinary referral? Currently, in exceptional circumstances, judges will impose Fed. R. Civ. P. 11 sanctions and, in the same breath, refer the matter to the appropriate grievance committee. But such referrals are very rare.9 And, in the absence of an explicit referral, disciplinary action based on frivolous litigation is exceptional; most bar disciplinary agencies rely on the courts, where the litigation is pending, to deal with abuse.10 Is this deference justified?
3.It is not always obvious what constitutes a frivolous claim. As one commentator has put it: “Frivolous litigation . . . is difficult to define and almost impossible to observe, and it defies all attempts at simple explanation.”11 Reflecting this uncertainty, the “frivolous claim” label has been attached to a range of litigation.
Some believe litigation is “frivolous” if it is objectively unlikely to succeed.12 Still others reserve the label for only those suits that are spectacularly farfetched. Adopting this definition, Judge Frank Easterbrook of the Seventh Circuit has explained: “Something is frivolous only when (a) we’ve decided the very point, and recently, against the person asserting it, or (b) 99 of 100 practicing lawyers would be 99% sure that the position is untenable, and the other would be 60% sure it’s untenable.”13 Similarly, the Restatement (Third) of the Law Governing Lawyers suggests: “A frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it.”14 Finally, still others attach the “frivolous” label to any suit with a negative expected value—that is, a suit that may be objectively meritorious but where the expected value of the court award is smaller than the plaintiff’s transaction costs of obtaining the award.15 Adopting this view, some commentators would say that a complaint that seeks damages that are less than the minimum costs of going to trial necessarily runs afoul of Fed. R. Civ. P. 11. The justification for reading the rule to bar such negative expected value suits would be that the plaintiff is using the court, a scarce 340public resource, merely to harass the defendant. Would sanctioning a party for bringing a negative expected value suit be consistent with Rule 11?
4.According to the New York Times, Daniel Dempsey of Tucson, Arizona has spent three years and $35,000 battling Citibank over a $125 allegedly unjustified late fee on his credit card. Mr. Dempsey, who previously worked in Citi’s investment bank, said the erroneous charge ruined his credit score, and he has vowed to continue the fight until he is awarded damages.16
Is Mr. Dempsey’s effort frivolous? Should he be sanctioned for it? Should courts ever interpret Fed. R. Civ. P. 11(b)(1) to prohibit filings where the filing’s transaction costs outweigh the case’s anticipated benefits? What constitutes an “improper purpose” under Rule 11?17
5.Compounding the confusion, many commentators note: “Today’s frivolity may be tomorrow’s law, and the law often grows by an organic process in which a concept is conceived, then derided as absurd (and clearly not the law), then accepted as theoretically tenable (though not the law), then accepted as the law.”18 Imposing sanctions for frivolity may stunt this organic process of growth.
6.Was Lawrence v. Texas, 539 U.S. 558 (2003), the landmark case that struck down a sodomy law in Texas, a frivolous case when it was filed? Recall, it directly contradicted Bowers v. Hardwick, 478 U.S. 186 (1986), decided just seventeen years before. And, the Bowers majority had dismissed the legal argument that ultimately prevailed in Lawrence as “at best, facetious.” 478 U.S. at 194. The definition of “facetious” is “not meant to be taken seriously or literally,” or “joking or jesting, often inappropriately.”19 That, arguably, is even more pejorative than dismissing something as “frivolous.”
Or, in Plessy v. Ferguson, 163 U.S. 537 (1896), the Supreme Court upheld racial segregation. Could a lawyer have made a nonfrivolous argument that Plessy should be reversed one year after it was decided? Clearly such an argument would be wasting the Court’s time, at least in the sense that the outcome would be a foregone conclusion. What if the lawyer sincerely believed that Plessy was wrongly decided and that his case had a stronger factual record concerning the harms of “separate but equal”? Suppose the lawyer had waited three years, during which time new Justices were appointed. If Fed. R. Civ. P. 11 had been in effect, should sanctions have been imposed? If not, does that suggest that a legal argument can be sanctioned as frivolous if it is presented before an unsympathetic judge but not before a sympathetic judge? Does this hypothetical case differ from 341Brown v. Board of Education, 347 U.S. 483 (1954), which overturned Plessy, in any respect other than the passage of time?
If you believe that an argument to reverse Plessy would not have been frivolous even in 1897, do you also believe that an argument to reverse any case immediately after its decision can be offered in good faith? What would then become of the principles of res judicata and stare decisis? Consider the implications for overburdened courts and underfinanced opponents.
In this regard, note Professor Monroe Freedman’s comments on the landmark case, MacPherson v. Buick Motor Co., a mainstay of any Torts curriculum:
Justice Cardozo noted that nine out of ten, and perhaps even more, of the cases taken to the New York Court of Appeals during his time on that bench were “predetermined,” their fate “preestablished” by “inevitable laws” from the moment of their filing. MacPherson v. Buick Motor Co. appears to be a perfect example. In 1908, the Court of Appeals of New York had reaffirmed the long-established rule that a consumer cannot recover against the manufacturer of a product for negligence. Not long thereafter, MacPherson, who had been injured while driving a car with a defective wheel, sued the Buick Motor Company for negligent manufacture. Surely, MacPherson’s case was one of those that Cardozo called “predetermined.” The result of MacPherson’s appeal, however, was Cardozo’s most celebrated torts opinion, reversing long-established law by allowing a consumer to sue a manufacturer for a defective product, and demonstrating the creative common-law judging for which he has been so highly regarded.
. . . [T]he MacPherson decision imposed liability on [a defendant] who would almost certainly not have been liable if anyone but Cardozo had been stating and analyzing the prior case law. At the time of filing the complaint, however, MacPherson’s lawyer could not have known that Cardozo would choose to reverse a century of unbroken precedent that had only recently been reaffirmed. Much less could he have known that Cardozo would be able to carry a majority of the court with him. Without that frivolous-appearing complaint, however, Cardozo could not have changed the common law of manufacturer’s liability as he did.20
7.Along the same lines, Judge Jack Weinstein has written that “[s]ometimes there are reasons to sue even when one cannot win.”21 Do you agree? Is there a counterargument to Weinstein’s contention?
8.As noted above, Fed. R. Civ. P. 11 permits certain fishing expeditions. But clearly, there is some point to forbidding such expeditions. A striking example is Kinee v. Abraham Lincoln Federal Savings & Loan Ass’n, 365 F. Supp. 975, 982–83 (E.D. Pa. 1973), in which a group of homeowners sued 342mortgage lenders over an allegedly improper method of mortgage collection. To learn which lenders employed this method, plaintiffs’ lawyers named as defendants all 177 mortgage brokers listed in the Philadelphia telephone book, provoking a sanction under the older version of Rule 11.
To most commentators and courts, a categorical prohibition on fishing expeditions is excessively harsh, particularly as applied to actions where a plaintiff is required to show that the defendant had a particular motive, knew or was aware of certain facts, or engaged in a conspiracy. Very often, that crucial evidence exists only in the defendant’s own mind or files and can be found only through discovery after a complaint has been filed. For this reason, as noted above, Rule 11 requires attorneys to certify, not that their “factual contentions have evidentiary support,” but rather, “if specifically so identified,” that the allegations “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3).
9.Per Fed. R. Civ. P. 11(b), each filing must also be preceded by “an inquiry reasonable under the circumstances.” Again to borrow from the example above, since a lawyer must perform a reasonable inquiry prior to filing, a lawyer can be sanctioned if she sues 177 mortgage brokers if a reasonable inquiry would have made it clear that most of those brokers did not engage in the challenged conduct.
How do you know whether an inquiry was or was not “reasonable?” Courts generally consider, among other things, whether the filing was time-sensitive, whether the information came just from the client and, if so, whether there were reasons to doubt the client’s veracity, and whether other information was available (either through readily-available witnesses or public documents) to support or belie the client’s assertions. As one court has put it: “When the attorney can obtain the information necessary to certify the validity of the claim in public fashion and need not rely solely on the client, he must do so.”22 Thus, for example, in Van Berkel v. Fox Farm & Road Machinery, 581 F. Supp. 1248 (D. Minn. 1984), the client told the lawyer he had been injured on September 6, 1977. In reality, the client had been injured in 1976, and the client’s claim was time-barred. But relying on the client’s recollection, the lawyer filed suit after the statute of limitations had run. After dismissing the claim, the court imposed Rule 11 sanctions because the attorney had neglected to obtain the client’s medical records, which were readily available and would have revealed the correct date of the client’s injury.23
10.The Lawsuit Abuse Reduction Act of 2017 (H.R. 720, S. 237) is a bill that has been pending in Congress in various forms for many years, though it has not yet been enacted into law. Designed to decrease frivolous litigation by making sanctions under Fed. R. Civ. P. 11 mandatory rather than 343discretionary, the bill would also remove the current twenty-one-day safe harbor and make monetary sanctions the required penalty for a violation—essentially returning the rule to its pre-1993 form, but on steroids. The Chamber of Commerce supports the legislation, arguing that the current Rule 11 “rewards the gamesmanship of unscrupulous attorneys who are able to file baseless claims without fear of recourse.”24 Further, the Chamber warns: “Without true consequences being imposed on parties who make meritless legal claims, innocent businesses will continue to be threatened with the reality that paying off baseless claims is often cheaper than litigation.”25 Adds Cary Silverman, a partner in the law firm Shook, Hardy & Bacon: Under the current system, there is “nothing to lose by filing a frivolous case, whether it is a result of shoddy legal research, lack of supporting facts, a shotgun approach to naming defendants, a laughable legal theory, or something more nefarious.”26 The Lawsuit Abuse Reduction Act would up the ante, imposing serious penalties on such filers.
Critics of this legislation, including Public Citizen and many academics, respond that the bill would infringe upon judicial discretion, chill meritorious litigation, exacerbate incivility, spur costly satellite litigation, and tilt the playing field further in favor of well-heeled litigants.27 They also note that federal judges overwhelmingly oppose the amendment and are fine with Rule 11 as it is. A 2005 survey conducted by the Federal Judicial Center found that 80 percent of U.S. district court judges share the view that “Rule 11 is needed and it is just right as it now stands,” while 87 percent of surveyed judges prefer the current rule to the 1983 version.28 Finally, some point out that the current pleading threshold—which requires claims to have evidentiary support and not be filed for an improper purpose—efficiently screens meritless cases prior to discovery, while the existing statutory regime for sanctions adequately punishes attorneys who persist with baseless cases.29
Would you favor the enactment of the Lawsuit Abuse Reduction Act? Why or why not?
11.In addition to Fed. R. Civ. P. 11, courts have at their disposal numerous other statutory and procedural provisions to deter abuse. For example, under 28 U.S.C. § 1927, an attorney in federal court who multiplies proceedings unreasonably and vexatiously may be required to pay the excess costs and attorneys’ fees that result from such conduct. Federal Rule of Civil Procedure 37 authorizes a range of sanctions to be directed at those who neglect their discovery obligations. Federal Rule 30(d) authorizes sanctions against any 344person who “impedes, delays, or frustrates” a deposition. Federal Rules 16 and 26 seek to deter abuse through judicial management of pretrial proceedings. Finally, under its inherent power, a court may also impose stiff penalties for bad faith litigation conduct, even in the absence of other formal authority. Chambers v. NASCO, Inc., 501 U.S. 32 (1991).30
a)You are a partner in a small firm that handles real estate cases, including landlord-tenant cases, some on a pro bono basis. In one eviction matter that your firm is handling pro bono, an associate presents pleadings for your signature. Your client is two months delinquent in his rent. Your client insists he should not have to pay rent because of the landlord’s many building code violations. Unfortunately, however, there is a well-established line of authority that holds that building code violations are not a defense in suits for eviction, when (as here) rent has not been paid.
Still, your associate has prepared a general denial to the landlord’s eviction complaint and has requested a jury trial. This defense strategy, commonly employed in legal aid offices, will delay the proceeding for sixty days. During that sixty-day period, your client can save up enough for a security deposit and the first month’s rent on another apartment. Your state code of civil procedure contains a rule identical in wording to Fed. R. Civ. P. 11. Do you sign the pleading?
b)Now assume you have signed the pleading and, after procedural wrangling, the trial court finds, as expected, that the landlord’s building code violations are not a defense to your client’s failure to pay rent. You believe that the chances that an appellate court would overrule that determination are minimal (less than 1 percent), but the appointment of two new judges leaves a slight glimmer of hope. Notwithstanding these long odds, your client would like to pursue the appeal because during the pendency of the appeal, he will be able to use the back-rent he officially owes his now-former landlord. He also hopes that the strategy will impose some appropriate costs on a landlord who is unwilling to repair major apartment defects. Do you file the appeal?
c)In another paying case, your client has vacated an expensive apartment in a luxury building. The landlord has unjustifiably withheld the $6,000 security deposit, and the client wishes to sue for the deposit’s return. The security deposit is over the limit for small claims court.
You explain to your client that, even though she is likely to win if the case goes to trial, your fee and litigation expenses will cost her considerably more than she can ever hope to recover. She insists that she nevertheless wishes to proceed since, in her words, “I’m right and he’s wrong and I’m going to prove it in public. It’s worth it to see him squirm 345in court. And besides, other tenants are getting jerked around by him, too, and somebody needs to do something about that.”
Your associate drafts the complaint but appends a memo raising concerns that, because the case is clearly a financial loser for the client, the judge will view it either as harassment or as a nuisance suit designed to extract an unjustified settlement. The associate warns that, in either eventuality, the firm may be sanctioned under the state’s version of Fed. R. Civ. P. 11. Do you file the complaint?
d)In the case directly above, now suppose you are the landlord’s lawyer. The complaint has been filed, and you immediately see it is a losing proposition for the plaintiff. Do you file a Fed. R. Civ. P. 11 motion to sanction your opposing counsel for filing a “frivolous” complaint? Why or why not?
References: Rule 3.1; Fed. R. Civ. P. 11.
You are an associate in a midsize firm, defending a physician in a multi-million-dollar medical malpractice case. The physician, it is alleged, perforated the plaintiff’s esophagus during a routine medical procedure. Before the trial begins, the partner supervising the case tells you to file a pretrial motion seeking to preclude the opposing counsel’s “emotional displays” during the trial. The partner has already drafted the motion, which states: “Counsel for the Plaintiff has a proclivity for displays of anguish in the presence of the jury, including crying.” Counsel’s “predicted flood of tears,” the motion continues, could be nothing more than “a shrewdly calculated attempt to elicit a sympathetic response” from the jury.31
Opposing counsel is female; she is, in fact, one of the only female lawyers in the country who represents plaintiffs in such high-stakes medical malpractice litigation. You do not know whether or not she actually has cried at previous trials, but the partner explains that that’s not the point. He tells you: “No matter what, even if the judge denies the motion, it’ll knock her off balance—and it’ll plant in the judge’s mind that she’ll deploy her feminine wiles to get what she wants. He’ll watch her like a hawk and we’ll get a leg up.”
Do you file the motion? Why or why not? If you do file the motion, are you subject to sanctions pursuant to Fed. R. Civ. P. 11?
References: Rules 3.1, 3.4, 5.2, 8.4(g), Fed. R. Civ. P. 11.
B.An Advocate’s Duty of Candor
Just as lawyers may not initiate frivolous litigation or lodge improper filings, lawyers have affirmative obligations to tribunals—and 346even to third persons. This Part explores these obligations. The first Section considers Rule 3.3(a)(2), which imposes on counsel an obligation to disclose certain contrary authority to the court. The second Section then considers two interlocking provisions—Rules 3.3(a)(1) and 4.1—which curtail lawyers’ ability to make false statements, both in and out of court.
When must a litigant highlight contrary authority that her opposing counsel has missed? Rule 3.3(a)(2) addresses that question and states:
A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
“Legal authority” includes not only case law but also statutes, ordinances, and administrative regulations, within the “controlling jurisdiction.”32
1.Does a lawyer’s failure to disclose adverse legal authority necessarily also violate Fed. R. Civ. P. 11? Even if not, Fed. R. Civ. P. 11 and Rule 3.3(a)(2) violations often go hand-in-hand. That is because the former requires that a legal position be warranted by existing law or a good faith argument for the law’s extension, modification, or reversal—and if a lawyer’s statement of the law is deceptive because it fails to account for contrary authority, the lawyer might be in the unenviable position of having violated both Fed. R. Civ. P. 11 and Rule 3.3 (and also, sometimes, Rule 3.1).33
2.It is well established that a lawyer need not cite all potentially adverse legal authority; she must just cite legal authority that is “directly adverse.” What qualifies? According to the Restatement (Third) of the Law Governing Lawyers: “In most jurisdictions, such legal authority includes all decisions with holdings directly on point, but it does not include dicta.”34 Is the line between a case holding and mere dicta always clearly delineated? A prominent case puts it this way: “This duty of candor includes the obligation . . . to disclose legal authorities that the court should, in fairness, consider when making its decision.”35 For its part, the Hazard and Hodes treatise on The Law of Lawyering states: “The more unhappy a lawyer is that he found an adverse precedent, the clearer it is that he must reveal it.”36
3473.Notice that Rule 3.3(a)(2) refers to a “tribunal.” According to the terminology section of the Rules, the word “tribunal” “denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.”37 Rule 3.3(a)(2) is silent on out-of-court dealings, and commentators have divided on what is required.38
4.One commentator has described the obligation imposed by Rule 3.3(a)(2) as “the most noteworthy example of the Code’s subordination of the interests of the client and the lawyer in favor of those of the judicial system.”39 Do you agree?
5.The obligation to disclose contrary authority is one area where many believe that the ethics rules overlap with prudent practice. Judge Stanley Sporkin, who sat for fifteen years on the D.C. District Court, put it this way: “If you try to spin a court by hiding a key decision that goes against you, the chances are the judge will find out about the decision either from your adversary or from a law clerk. At that point, your credibility is zero.”40 Others note that if you identify a contrary precedent, you have the opportunity to explain why it is distinguishable—and your stock, in the court’s eyes, is apt to rise.41 If you fail to identify the contrary precedent, a judge will often just assume you are incompetent—or, worse, evasive.
In addition to the obligation to highlight contrary authority, Rule 3.3 also provides: “(a) A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Recall from the discussion above, “tribunal” is a term of art. Defined in Rule 1.0(m), it “denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.”
When statements are made outside of a tribunal, Rule 4.1 applies. Titled “Truthfulness in Statements to Others,” Rule 4.1 provides:
In the course of representing a client a lawyer shall not knowingly:
(a)make a false statement of material fact or law to a third person; or
348(b)fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 [governing confidentiality].
A Comment to the Rule further explains:
[2]Statement of Fact. This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.
Rule 4.1 took center stage recently in the case Azar v. Garza, 138 S. Ct. 1790 (2018). The case’s factual and procedural history is convoluted but very important: Jane Doe, aged seventeen, entered this country unaccompanied and without documentation in early September 2017, whereupon she was seized by federal immigration officials and confined in Texas. While in custody, Doe learned that she was pregnant, and she chose to terminate her pregnancy. Although Doe had a clear constitutional right to terminate her pregnancy under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), immigration authorities neither gave her access to that medical procedure, nor released her from custody.42
The ACLU took up Doe’s case and, soon thereafter, sought a Temporary Restraining Order (TRO) in a D.C. District Court, contending that certain named governmental officials were imposing an “undue burden” on her right to privacy by continuing to detain her, in contravention of Casey. On October 18, 2017, the district court granted the ACLU’s motion, finding, among other things, that Doe was likely to succeed on the merits and would suffer irreparable injury without the TRO. Accordingly, the district court ordered governmental officials to allow Doe to leave the immigration facility the following day (October 19) for the pre-abortion counseling mandated by Texas law and further ordered that, after receiving this counseling, Doe should be permitted to have an abortion on either October 20 or 21, 2017. This staggering was necessary to comply with Texas law: In Texas, women seeking abortions 349must obtain counseling at least twenty-four hours in advance of the procedure from the same physician who will perform the procedure.43
Subsequently, in Texas, Doe received that necessary counseling from a doctor—hereinafter, the “first doctor”—and, back in D.C., the government appealed the TRO to the D.C. Circuit. After hearing argument, a divided panel of the D.C. Circuit sided with the government and vacated the portion of the district court’s order that had allowed the abortion procedure. In a rare move, the D.C. Circuit then took the case en banc, however, and it reversed the panel’s determination. Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc).
After en banc review, the case made its way back to the district court. On October 24, 2017, the district court issued an amended TRO, again preventing the government from interfering with Doe’s abortion and specifying that the procedure should happen “promptly and without delay.” With the amended TRO in hand, that night, Doe went back to the clinic to obtain counseling again, this time from a second doctor, since everyone believed the first doctor (who had provided counseling almost a week before) was unavailable. However, because that second doctor was also unavailable at that late hour, Doe’s lawyer (truthfully, based on the information then available) informed the government’s counsel that Doe had rescheduled her clinic appointment to the following morning, October 25 at 7:30 a.m., with the abortion to follow twenty-four hours after that, on the 26th. Doe’s counsel further represented, in an e-mail sent at 6:28 p.m.: “as soon as we understand the clinic’s schedule tomorrow we will let you know.”44
But then came a surprise: After that correspondence, Doe’s lawyer learned that the first doctor, who provided the initial counseling on October 19th, might be available. Accordingly, Doe’s legal team moved up the next day’s appointment to 4:15 a.m. Around 9:30 p.m., Doe’s guardian ad litem notified the shelter staff and the government’s lawyer that Doe’s appointment had been changed to that early-morning hour. Though the shelter staff apparently “wonder[ed] . . . whether the nature of the appointment also might have changed”—in other words, whether an abortion might be performed—Doe’s lawyer did not say (or even know for sure).45 It turned out that the first doctor did become available, and since he had already provided the statutorily-mandated pre-abortion counseling, he could—and, in fact, did—perform an abortion. To sum up, 350as David Cole, the National Legal Director for the ACLU told the government by letter:
We [the ACLU] did not become aware, until late in the evening of October 24, that it might be possible for the physician who had counseled Ms. Doe on October 19 to return to the clinic to perform the abortion on the morning of October 25. It was not clear until the morning of October 25 that he would in fact be able to do so.46
Meanwhile, although the government was aware of the peculiar time of Doe’s 4:15 a.m. clinic appointment on October 25, the government insisted it continued to believe that no abortion could be obtained until the 26th at the earliest. Under that misapprehension, the government did not file an emergency stay with the Supreme Court. Of course, once the abortion was obtained, any opportunity to file a stay or otherwise prevent the procedure was lost.
Subsequently, the government, through the Solicitor General, filed a brief with the U.S. Supreme Court contending that the ACLU lawyer’s silence on the evening of October 25th amounted to an unethical “misrepresentation” by omission, tantamount to affirmatively lying about the purpose of the visit. In the Solicitor General’s words:
[I]n light of the extraordinary circumstances of this case, the government respectfully submits that this Court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel—either directly by this Court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.47
According to the Solicitor General:
Ms. Doe’s representatives may have been free to say nothing about the timing of her procedure. But they could not make repeated representations to the government (and the courts) about that procedure’s timing, know that the government was relying on those statements, act to render the statements false, and then say nothing to correct the falsehood. That is not conduct becoming members of the Bar of this Court.48
The Solicitor General seized particularly on the 6:28 p.m. email and further suggested that the ACLU had a duty to notify opposing counsel of clinic developments. It asserted:
351Rule 4.1 provides that, “[i]n the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person,” Model Rules of Prof’l Conduct R. 4.1 (2017), and shall not, at any time, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” Model Rules of Prof’l Conduct R. 8.4(c) (2017). Although a lawyer generally has no affirmative duty to inform an opposing party of relevant facts,” misrepresentations can occur through “omissions that are the equivalent of affirmative false statements.” Model Rules of Prof’l Conduct R. 4.1 cmt. 1 (2017).49
The ACLU, for its part, insisted that it was under no legal, ethical, or self-imposed obligation to assist the government or to inform the government that the situation had changed, such that its client would be able to obtain an abortion in the early morning of October 25th. Said the ACLU:
The government’s recitation of events shows that: (1) Ms. Doe’s counsel made a series of accurate statements concerning the availability of, and logistics surrounding, Ms. Doe’s ability to obtain an abortion; (2) some government personnel may have incorrectly assumed that Ms. Doe could not obtain an abortion before October 26, even though she was legally entitled to obtain an immediate abortion, and had received state-mandated counseling on October 19; (3) some government lawyers may have believed that Ms. Doe’s counsel would advise them if facts changed; and (4) Ms. Doe’s counsel did not take affirmative steps to notify the government that the doctor who provided the counseling on October 19 agreed to come back to the clinic. The government’s suggestion that this might amount to sanctionable misconduct is not supported by legal authorities regarding attorney conduct, is not remotely justified by the disciplinary cases it cites, and is contrary to counsel’s respective ethical duties.50
In an unsigned, per curiam decision, the Supreme Court granted certiorari to consider the underlying legal issue: the constitutionality of the Office of Refugee Resettlement’s policy regarding pregnant minors who seek abortions. In the course of that opinion, the Court did not resolve the question of whether the ACLU violated any ethical rules, and provided:
The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession. On the one hand, all attorneys must remain 352aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another’s representations. On the other hand, lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the [relevant] question here.51
This on-the-one-hand-on-the-other-hand paragraph, coupled with the many months it took for the Court to decide on the petition for certiorari, strongly suggests that the Justices could not agree about the ethics issue, nor whether the Court should take steps against ACLU’s lawyers.52
1.Did the ACLU err in failing to notify the government that, because of the first doctor’s sudden and unexpected availability, Doe would be able to obtain an abortion on October 25th? Does it matter that the ACLU sent the e-mail at 6:28 p.m. to the government’s counsel that “as soon as we understand the clinic’s schedule tomorrow we will let you know”?
2.Would such notification have been consistent with Doe’s lawyer’s duty of zealous representation? Would such notification have been consistent with Doe’s lawyer’s duty of confidentiality, as set forth in Rule 1.6 and discussed in Chapter 6? In the Texas version of Rule 1.6, a lawyer must not knowingly reveal confidential information to anyone “other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm,” and a lawyer also shall not “[u]se confidential information of a client to the disadvantage of the client unless the client consents after consultations.” Texas Disciplinary Rules of Prof’s Conduct R. 1.05(b)(1) & (2). For purposes of the Rule, “confidential information” is defined broadly to include both privileged information and “all information relating to a client or furnished by the client . . . acquired by the lawyer during the course of or by reason of the representation of the client.” Id. R. 1.05(a).
3.Was such notification mandated by Rule 4.1, as the Solicitor General insists? What, exactly, does Rule 4.1 require?
4.If you had been Jane Doe’s lawyer, what would you have done? As you consider the question, recognize that time was of the essence: Doe was already sixteen-weeks pregnant, and abortion becomes illegal in Texas after week twenty.
353a)You are in the middle of a mediation concerning a contract dispute. Last year, the state’s highest court issued a ruling concerning when the statute of limitations on this type of claim accrues. Interpreting that ruling, you think a lower court might well find that your client’s claim is time-barred. Over the course of the mediation, it becomes clear that your opposing counsel and the mediator are both ignorant of that decision. Unaware of the statute of limitations issue, which might reduce your claim to rubble, they think you have a better case than you actually have. Must you clear up the confusion? Should you?
b)All the facts above are true, but now in the mediation you say, in a moment of frustration: “Listen, folks, if we can’t settle, we’re happy to go to trial. This case is a slam dunk!” Now have you crossed a line?
References: Rules 3.3(a)(2), 4.1.
Another impermissible adversarial tactic involves discovery abuse. Civil discovery is governed by four rules. The first is Rule 3.4, titled: Fairness to Opposing Party and Counsel. It provides that a lawyer “shall not”:
(a)unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; . . .
(c)knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;
(d)in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party. . . .
Second, Rule 3.2 states that a lawyer shall make “reasonable efforts to expedite litigation consistent with the client’s interests.” The comment cautions: “Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”
Third, Fed. R. Civ. P. 26 offers a detailed set of discovery requirements, entitling parties to broad discovery. Under Rule 26(b), parties are entitled to “obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” “Information . . . need not be admissible as evidence, in order to be discoverable.” Further, under Rule 26(g), every disclosure must be signed by at least one attorney of record—and by signing the discovery response, an attorney certifies “that to the best of 354the person’s knowledge, information, and belief formed after a reasonable inquiry” that each disclosure was “complete and correct as of the time it is made” and that every discovery request, response, or objection is:
(i)consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii)not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii)neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Rule 26(g)(3) then provides:
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.
Rounding out the regulatory architecture, Fed. R. Civ. P. 37 authorizes motions to compel and declares that if a party fails to obey an order compelling discovery, a court may impose appropriate sanctions on the lawyers and parties involved. Fed. R. Civ. P. 30 governs depositions and specifies, per (d)(2), that a district court “may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”
2.Discovery: Contemporary Practice
One of the primary purposes of discovery, according to the U.S. Supreme Court, is to assure “[m]utual knowledge of all the relevant facts gathered by both parties [that] is essential to proper litigation.”53 It is instructive to compare this characterization with a Chicago litigator’s candid description of the aims of discovery: “The purpose of discovery . . . is to give as little as possible so [your opponents] will have to come back and back and maybe will go away or give up.”54 Civil discovery is intended to enhance the search for truth and to eliminate surprises by facilitating parties’ access to facts in the possession of their adversaries. But, as the litigator’s cynical description indicates, the discovery process is too often abused for tactical reasons, and many litigators agree with then-federal 355judge Marvin E. Frankel that discovery has become an occasion for “beating plowshares into swords”—turning a mechanism intended to control adversarial excess into an adversarial weapon in its own right.55
Discovery abuse can take many forms: everything from unnecessary, duplicative depositions of every potential witness; to corporate defendants’ production of deponents who know too little; to extended colloquies and speaking objections that disrupt depositions’ pace and flow; to canned and scattershot interrogatory requests; to cagey and evasive interrogatory responses; to the “file dump” of irrelevant documents (in the hope that incriminating filings remain buried); to unjustified assertions of the attorney-client privilege; to the decision simply to bury responsive information once it comes to light internally. An example of the last type of abuse occurred, prominently, in the matter below.
The facts of Qualcomm Inc. v. Broadcom Corp. are somewhat convoluted. In 2005, Qualcomm initiated an intellectual property suit against Broadcom based on Broadcom’s manufacture of H.264-compliant products, which, Qualcomm claimed, violated two of its patents. Broadcom responded that Qualcomm had waived its right to enforce the patents by participating in the Joint Video Team (JVT), the standards setting body that created the H.264 standard. Thus, central to the dispute was whether Qualcomm had participated in the JVT, as participation would preclude it from bringing its patent claims.
During discovery, Broadcom sought information concerning Qualcomm’s participation in, and communications with, the JVT. For example, as early as January 23, 2006, Broadcom served the following document requests:
All documents given to or received from a standards setting body or group that concern any standard relating to the processing of digital video signals . . . [and]
All documents concerning any Qualcomm membership, participation, interaction, and/or involvement in setting any standard relating to the processing of digital video signals that pertains in any way to any Qualcomm Patent.
Broadcom also requested similar information via interrogatories and in depositions. In response to Broadcom’s request for JVT documents, Qualcomm stated, “Qualcomm will produce non-privileged relevant and responsive documents describing QUALCOMM’s participation in the JVT, if any, which can be located after a reasonable search.”
As the case progressed, and even through trial, Qualcomm repeatedly denied that it participated in the JVT during the relevant period. But, while preparing Qualcomm witness Viji Raveendran to testify at trial, Qualcomm attorney Adam Bier discovered an August 6, 3562002 email to viji@qualcomm.com welcoming her to the avc_ce mailing list—a list of JVT participants. (Of course, the email’s presence on Raveendran’s computer undercut Qualcomm’s key argument that it had not participated in the JVT during the relevant period.) Several days later, attorney Bier and witness Raveendran searched Raveendran’s laptop and discovered twenty-one separate JVT team emails, none of which Qualcomm had produced in discovery. The Qualcomm trial team decided not to produce these newly-discovered emails. Nor did Qualcomm’s trial team conduct any investigation to determine whether there were more incriminating emails that also had not been produced.
This all came spilling out during Raveendran’s trial testimony. On direct, Qualcomm attorney Lee Patch pointedly did not ask Raveendran any questions that would reveal that she had received the twenty-one emails from the avc_ce mailing list; instead, he asked whether she had “any knowledge of having read” any emails from the avc_ce mailing list. But on cross-examination, Broadcom asked the right question, and Raveendran was finally forced to admit that she had received these incriminating emails. Shortly thereafter, the jury returned a unanimous verdict in favor of Broadcom.
Following trial, Qualcomm initially continued to dispute the relevance and responsiveness of the twenty-one Raveendran emails and also resisted Broadcom’s efforts to determine the scope of its discovery violation. However, on April 9, 2007, Qualcomm’s General Counsel finally admitted that Qualcomm had thousands of relevant unproduced documents and that the company’s review of these documents “revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm’s behalf at trial and in the equitable hearing following trial.” Thereafter, Qualcomm searched its email archives and located more than 46,000 documents, which had been requested but not produced in discovery.
Ultimately, the trial judge granted Broadcom’s Motion for an Award of Attorneys’ Fees pursuant to 35 U.S.C. § 285, finding by clear and convincing evidence that Qualcomm’s misconduct justified Qualcomm’s payment of all fees and costs, ultimately calculated at roughly $8.6 million. (Section 285 provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”) The order below focused on the outside attorneys, who were also complicit.
Qualcomm Inc. v. Broadcom Corp.
U.S. District Court, Southern District of California
2008 WL 66932 (2008).
n Barbara L. Major, United States Magistrate Judge.
At the conclusion of trial, counsel for Broadcom Corporation (“Broadcom”) made an oral motion for sanctions after Qualcomm Incorporated (“Qualcomm”) witness Viji Raveendran testified about 357emails that were not produced to Broadcom during discovery. The trial judge, United States District Court Judge Rudi M. Brewster, referred the motion to this Court. . . . Having considered all of the written and oral arguments presented and supporting documents submitted, and for the reasons set forth more fully below, the Court GRANTS IN PART. . . . Broadcom’s motion for sanctions against Qualcomm, REFERS TO THE STATE BAR OF CALIFORNIA six attorneys, and SANCTIONS Qualcomm and six of its retained lawyers. . . .
DISCUSSION
The Federal Civil Rules authorize federal courts to impose sanctions on parties and their attorneys who fail to comply with discovery obligations and court orders. Rule 37 authorizes a party to file a motion to compel an opponent to comply with a discovery request or obligation when the opponent fails to do so initially. If such a motion is filed, the rule requires the court to award reasonable attorney’s fees to the prevailing party unless the court finds the losing party’s position was “substantially justified” or other circumstances make such an award unjust. . . .
The Federal Rules also provide for sanctions against individual attorneys who are remiss in complying with their discovery obligations:
[e]very discovery request, response or objection made by a party . . . shall be signed by at least one attorney [and] [t]he signature of the attorney . . . constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is: consistent with the rules and law, not interposed for an improper purpose, and not unreasonable or unduly burdensome or expensive.
Fed. R. Civ. P. 26(g)(2). . . .
In addition to this rule-based authority, federal courts have the inherent power to sanction litigants to prevent abuse of the judicial process. . . .
As summarized above, Broadcom served interrogatories and requested documents relating to Qualcomm’s participation in the JVT. Qualcomm responded that “Qualcomm will produce non-privileged relevant and responsive documents describing QUALCOMM’s participation in the JVT, if any, which can be located after a reasonable search.” . . .
Despite these responses, Qualcomm did not produce over 46,000 responsive documents, many of which directly contradict the non-participation argument that Qualcomm repeatedly made to the court and jury. . . .
The Court’s review of Qualcomm’s declarations, the attorneys’ declarations, and [the trial court’s] orders lead this Court to the 358inevitable conclusion that Qualcomm intentionally withheld tens of thousands of decisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom. Qualcomm could not have achieved this goal without some type of assistance or deliberate ignorance from its retained attorneys. Accordingly, the Court concludes it must sanction both Qualcomm and some of its retained attorneys. . . .
The next question is what, if any, role did Qualcomm’s retained lawyers play in withholding the documents? The Court envisions four scenarios. First, Qualcomm intentionally hid the documents from its retained lawyers and did so so effectively that the lawyers did not know or suspect that the suppressed documents existed. Second, the retained lawyers failed to discover the intentionally hidden documents or suspect their existence due to their complete ineptitude and disorganization. Third, Qualcomm shared the damaging documents with its retained lawyers (or at least some of them) and the knowledgeable lawyers worked with Qualcomm to hide the documents and all evidence of Qualcomm’s early involvement in the JVT. Or, fourth, while Qualcomm did not tell the retained lawyers about the damaging documents and evidence, the lawyers suspected there was additional evidence or information but chose to ignore the evidence and warning signs and accept Qualcomm’s incredible assertions regarding the adequacy of the document search and witness investigation.
Given the impressive education and extensive experience of Qualcomm’s retained lawyers, the Court rejects the first and second possibilities. It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm’s document search and production. Qualcomm did not fail to produce a document or two; it withheld over 46,000 critical documents that extinguished Qualcomm’s primary argument of non-participation in the JVT. . . . Given the volume and importance of the withheld documents, the number of involved Qualcomm employees, and the numerous warning flags, the Court finds it unbelievable that the retained attorneys did not know or suspect that Qualcomm had not conducted an adequate search for documents.
The Court finds no direct evidence establishing option three. Neither party nor the attorneys have presented evidence that Qualcomm told one or more of its retained attorneys about the damaging emails or that an attorney learned about the emails and that the knowledgeable attorney(s) then helped Qualcomm hide the emails. . . .
Thus, the Court finds it likely that some variation of option four occurred; that is, one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and 359production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit. These choices enabled Qualcomm to withhold hundreds of thousands of pages of relevant discovery and to assert numerous false and misleading arguments to the court and jury. This conduct warrants the imposition of sanctions.9 . . .
The Court finds that each of the following attorneys contributed to Qualcomm’s monumental discovery violation and is personally responsible: James Batchelder, Adam Bier, Kevin Leung, Christopher Mammen, Lee Patch, and Stanley Young (“Sanctioned Attorneys”).
Attorneys Leung, Mammen and Batchelder are responsible for the initial discovery failure because they handled or supervised Qualcomm’s discovery responses and production of documents. The Federal Rules impose an affirmative duty upon lawyers to engage in discovery in a responsible manner and to conduct a “reasonable inquiry” to determine whether discovery responses are sufficient and proper. In the instant case, a reasonable inquiry should have included searches using fundamental terms such as JVT, avc_ce or H.264, on the computers belonging to knowledgeable people such as Raveendran. . . . As the post-trial investigation confirmed, such a reasonable search would have revealed the suppressed documents. . . .10
Attorneys Bier, Mammen and Patch are responsible for the discovery violation because they also did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations. When Bier reviewed the August 6, 2002 email welcoming Raveendran to the avc_ce email group, he knew or should have known that it contradicted Qualcomm’s trial arguments and he had an obligation to verify that it had been produced in discovery or to immediately produce it. If Bier, as a junior lawyer, lacked the experience 360to recognize the significance of the document, then a more senior or knowledgeable attorney should have assisted him. . . .
Similarly, when Bier found the 21 emails on Raveendran’s computer that had not been produced in discovery, he took the appropriate action and informed his supervisors, Mammen and Patch. Patch discussed the discovery and production issue with Young and Batchelder. While all of these attorneys assert that there was a plausible argument that Broadcom did not request these documents, only Bier and Mammen actually read the emails. Moreover, all of the attorneys missed the critical inquiry: Was Qualcomm’s document search adequate? If these 21 emails were not discovered during Qualcomm’s document search, how many more might exist? The answer, obviously, was tens of thousands. If Bier, Mammen, Patch, Young or Batchelder had conducted a reasonable inquiry after the discovery of the 21 Raveendran emails, they would have discovered the inadequacy of Qualcomm’s search and the suppressed documents. . . . Finally, attorneys Young, Patch, and Batchelder bear responsibility for the discovery failure because they did not conduct a reasonable inquiry into Qualcomm’s discovery production before making specific factual and legal arguments to the court. . . .
Patch was an integral part of the trial team—familiar with Qualcomm’s arguments, theories and strategies. He knew on January 14th that 21 avc_ce emails had been discovered on Raveendran’s computer. Without reading or reviewing the emails, Patch participated in the decision not to produce them. Several days later, Patch carefully tailored his questions to ensure that Raveendran did not testify about the unproduced emails. And, after Broadcom stumbled into the email testimony, Patch affirmatively misled the Court by claiming that he did not know whether the emails were responsive to Broadcom’s discovery requests. . . . Batchelder also is responsible because he was the lead trial attorney and, as such, he was most familiar with Qualcomm’s important arguments and witnesses. . . .
For all of these reasons, the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm’s document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation. . . .
As set forth above, the Sanctioned Attorneys assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate. The Sanctioned Attorneys then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury. As such, the Sanctioned Attorneys violated their discovery obligations and also may have violated their ethical duties. To address the potential ethical violations, the Court 361refers the Sanctioned Attorneys to The State Bar of California for an appropriate investigation and possible imposition of sanctions. . . .
1.In a subsequent order, U.S. District Court Judge Rudi Brewster vacated Magistrate Judge Major’s sanction judgment vis-à-vis the attorneys, so that the attorneys could assert a self-defense exception to the attorney-client privilege and justify their conduct.56 On remand, after considering this new (now non-privileged) evidence, Magistrate Judge Major issued a new order on April 2, 2010, resolving the affair.57
In this 2010 order, Magistrate Judge Major found that the outside counsel exhibited poor judgment, but not bad faith, and concluded that sanctions against the attorneys were inappropriate. Ultimately, she attributed the breakdown to three “fundamental failures”: (1) counsel failed to understand how Qualcomm’s computer system was organized; (2) there had been “an incredible breakdown in communication”; and (3) no one took charge to ensure that the necessary discovery had been conducted, and no one sought to smoke out potentially contradictory evidence.58 All of these failures were exacerbated by an “incredible lack of candor on the part of the principal Qualcomm employees.”59 Indeed, Magistrate Judge Major found: “The remand proceedings have clarified that a number of Qualcomm employees, including legal counsel, knew that Qualcomm had analyzed the H.264 standard and had attended JVT meetings during the relevant time period and yet no one informed Responding Attorneys.”60
The turn-about took over two years, during which 1.6 million documents were reviewed and large sums were spent. Indeed, it was reported that more money was spent in the sanctions case than in the underlying patent litigation.61 Qualcomm never objected to the $8.6 million sanction imposed against it, so that part of the above order was unaffected and ultimately enforced.62
2.Consider one expert’s advice about “Qualcomm Lessons”:
Would you add any additional lessons to the list above?
3.The six sanctioned lawyers belonged to a “boutique” forty-lawyer Silicon Valley intellectual property firm. They included two named partners, two other partners, and two associates, including a junior associate. How blameworthy were the lawyers after discovering the August 6, 2002 email to Raveendran welcoming her to the avc_ce mailing list? Were the associates more or less culpable than the partners? If you had been attorney Leung, who apparently requested a more thorough document search after the first incriminating document was discovered, what would you have done after your request was denied?
4.The most junior lawyer involved in the maelstrom was Adam Bier, a self-described “baby lawyer.” Bier had graduated from NYU Law School in 2004, just a few years before the Qualcomm matter came to a head. In an interview, he provided the following advice to young associates:
Always be cognizant of the discovery status of everything you come across, even if you’re not involved in discovery. This is really an area with a lot of land mines in the era of electronically-stored information. When you do come across stuff you haven’t seen before, document it, and document when you bring it to the attention of others. . . .64
Under the rules, does the fact that Adam was a subordinate lawyer shield him from liability? See Rule 5.2, which discusses the responsibilities of a “subordinate lawyer.”
5.Many suggest that discovery abuse is endemic. But how serious is the discovery abuse problem, really? The evidence is mixed and equivocal.65 For 363example, a Harris Poll of federal judges reports that, while only 3 percent think there are “no” problems with civil discovery, only 33 percent think that there are “a lot” of problems.66 The most systematic studies find that serious discovery abuse is mostly confined to a small minority of cases, particularly high-stakes matters in large legal communities that lack informal sanctions and significant judicial oversight.67
You are an associate in a firm representing Fisons, a drug manufacturer, in a products liability case. Fisons marketed a drug, Somophyllin, used to treat viral infections. Unfortunately, an excess of its active ingredient, theophylline, caused the plaintiffs’ infant daughter to have seizures, which caused catastrophic, permanent, brain damage. The plaintiffs sued their daughter’s pediatrician, who prescribed the drug, and Fisons, the manufacturer. The daughter’s pediatrician then cross-claimed against Fisons.
In pursuit of his cross-claim, the pediatrician’s attorney initially sought discovery from Fisons of all documents related to Somophyllin as well as theophylline. Your firm objected on the ground that the request was “overly broad, unduly burdensome, harassing, and not reasonably calculated to lead to the discovery of admissible evidence.” But you did agree to turn over all documents “regarding” Somophyllin.
Late in discovery, you come across documents relating to theophylline toxicity in a file for another drug, which Fisons also markets. You bring these documents to the attention of your supervising partner, and he tells you he does not believe that the documents need to be disclosed, because the plaintiffs did not move to compel production of documents other than those concerning Somophyllin. How should you proceed?
References: Rules 3.4, 5.2; Fed. R. Civ. P. 26, 37.
1. Problem 4 is based on Washington State Physicians Insurance Exchange Ass’n v. Fisons Corp., 858 P.2d 1054 (Wash. 1993). There, a smoking-gun document on toxicity finally came to light when a whistleblower within the company sent it to the defendant-pediatrician, after nearly three years of discovery. The letter, dated June 30, 1981, indicated that the drug company was aware of “life-threatening theophylline 364toxicity” in children who received theophylline and stated that prescribing physicians needed to understand that theophylline can be “capricious.” Later documents, uncovered once digging began, stated that the current recommended dose evidenced “poor clinical judgment,” noted that the toxicity reports were not reported in the journal read by prescribing physicians, and concluded that those physicians may not be aware of the “alarming increase in adverse reactions such as seizures, permanent brain damage and death.” One memo in particular concluded that the “epidemic of theophylline toxicity provides strong justification for our corporate decision to cease promotional activities with our theophylline line of products.” In fact, Fisons continued to promote and sell theophylline long after the date of the memo. None of these incriminating documents were turned over in the course of litigation.
Given the way defense counsel Bogle & Gates had chosen to narrow and then interpret the discovery requests, the Washington Supreme Court concluded: “It appears clear that no conceivable discovery request could have been made by the doctor that would have uncovered the relevant documents.”68 In the court’s view, Bogle & Gates deserved to be sanctioned because the firm’s responses were evasive, “misleading,” and “contrary to the purposes of discovery.”69
In a subsequent proceeding to determine the amount of sanctions to be imposed, Bogle & Gates had fourteen prominent (and likely well-compensated) experts testify on its behalf, including Professor Geoffrey Hazard, Jr., who was, the nation’s most well-known legal ethics commentator at the time. These experts testified that interpreting discovery requests narrowly and technically to avoid turning over inculpating documents was “typical” and “proper”; indeed, several claimed that it was required by lawyers’ “ethical obligation to zealously represent their clients.”70
If the legal ethics experts were correct about normal practice, how should that affect litigators’ decisions and courts’ interpretation of discovery rules? Consider the observation of Robert Aronson, a Seattle law professor who supported sanctions, that “there were kids out there dying because [Fisons’s lawyers and managers] were hiding information so they could win a lawsuit.”71
Ultimately, Bogle & Gates settled the sanctions case for $325,000, one of the highest penalties ever reported at the time. The underlying litigation was settled for $6.9 million. The case prompted a cover story in The American Lawyer (April 1994) titled “Sleazy in Seattle.”
2.Two years after Fisons, a federal judge again sanctioned Bogle & Gates for a similar discovery violation. Representing Subaru of America, Bogle & Gates responded to a discovery request by claiming that certain records did 365not exist. When later depositions showed that they did, in fact, exist, Bogle & Gates was ordered to pay the other side’s legal fees.72 In 1999, Bogle & Gates dissolved, for unrelated reasons.
You are a managing partner in a firm representing a plaintiff construction company in a products liability case. Your client alleges defects in the defendant’s steel manufacturing process which, if proven, could expose the corporation to extensive liability in subsequent suits by other customers. Accordingly, the defendant is waging a war of attrition in the hopes of convincing your client and other potential plaintiffs that their costs in trying the case would exceed any likely recovery. To that end, the defendant has:
1)made repeated requests to extend the date for compliance with subpoenas, refused your good faith requests to reschedule depositions, and produced an ostensibly “misfiled” document only when confronted by a reference to the document in an inadvertently disclosed attachment; and
2)responded to discovery requests by bombarding you with every remotely relevant document and, in one instance, referring you to thousands of pages of material that contained only one reference of even tangential relevance.
Lawyers for your firm have determined that the court is unlikely to impose meaningful sanctions for such conduct and have decided instead to respond in kind. The trial team has:
3)deposed opposing witnesses on the most peripheral possible matters in the most inconvenient possible locations;
4)reminded witnesses that “I don’t recall” is a response that generally avoids the risks of disclosure or prosecution for perjury; and
5)filed answers to interrogatories that are technically accurate but not responsive to the stated question.
The client has now objected to the escalating costs of discovery and accused your firm of meter-running. They insist that you reduce your own fees substantially. How should your firm proceed? Should you have handled discovery differently?
If your firm now moves for sanctions and opponents respond with a cross-motion for sanctions, how should the court rule? What further facts would be relevant to the court’s decision? In determining whether you or your opponents have engaged in sanctionable practices, should it matter who “started it”? Should any of the attorneys be personally subject to 366liability? Should the ethics of your firm’s discovery tactics be relevant in any subsequent disputes with the client over fees?
References: Rules 1.5, 3.1, 3.2, 3.4; Fed. R. Civ. P. 26, 37.
A lack of lawyer civility has long been a matter of concern. According to Supreme Court Justice Sandra Day O’Connor:
[S]ometimes attorney conduct crosses over from rude to downright scandalous. Two lawyers from prominent New York firms recently turned a deposition into an actual brawl. And attorneys have been spotted exchanging invectives and even engaging in shoving matches in front of various court clerks’ offices, an image that recalls the description of modern-day litigation as ice hockey in business suits. A sitting federal judge, who may deserve a medal, became so exasperated with a pair of lawyers in a case before him that he wrote an order noting. . . .
If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with lawyers of equally repugnant attributes. . . .
Most of us probably never encounter such outrageous conduct. I would hope that it is not that often that lawyers encounter even ordinary discourtesy. . . . We have lost sight of a fundamental attribute of our profession, one that Shakespeare described in The Taming of the Shrew. Adversaries in law, he wrote, “[s]trive mightily, but eat and drink as friends.” In contemporary practice, however we speak of our dealings with other lawyers as war—and too often we act accordingly.73
Courts, bar committees, and litigants have taken a number of steps to address the incivility Justice O’Connor laments. Such approaches are discussed below.
Others, however, believe that self-interest is the best check on incivility in the profession. For example, attorney Bartlett H. McGuire has written:
Some clients and many litigators . . . believe that a Rambo approach pays off, and in some cases that is doubtless true. In my view, however, there are also many instances in which the Rambo approach is counterproductive for both the client and the lawyer. My view is based on the following considerations:
Overly aggressive litigators tend to make claims and charges they cannot sustain. When they do so, their credibility is eroded and their good points tend to get lost. Once a judge, 367jury or adversary has lost confidence in a person’s representations, even correct statements are discounted or subject to the most rigorous scrutiny. . . .
Judges exchange views about litigators who appear before them, and other lawyers talk among themselves. Accordingly, if a lawyer’s credibility is eroded in one matter, his or her statements will receive critical scrutiny in unrelated matters. . . .
Since most lawsuits ultimately settle, it is important to maintain reasonable and cordial lines of communication with the other side. Abusing or harassing your adversary makes negotiating settlements extremely difficult. An angry adversary will often refuse to negotiate, or will demand more favorable terms than one who has been treated fairly. This is true of parties as well as attorneys. Mistreating the opposing party at a deposition, or accusing him of lying, can make a prompt and reasonable settlement impossible to achieve. . . .
When a lawyer loses credibility, engages in ad hominem attacks, provokes adversaries into retaliation, misses out on a favorable settlement, or engages in unnecessary discovery, the client is the ultimate loser. For this reason, many clients shy away from retaining Rambo litigators. . . .
Lawyers refer business to adversaries whom they respect and like. Clients give new business to adversaries who demonstrate that they are both skillful and reasonable to work with. Lawyers who are viewed as unreasonable and unpleasant, by contrast, lose rather than gain clients from this kind of comparison shopping. . . .
Litigation, like any other activity, is simply more fun if you are not always snarling at your adversary, and being snarled at in return.74
Seeking to further promote civility, in recent years, at least thirty-nine states have adopted “codes of civility.”75 These codes serve as aspirational guidelines that attorneys “should” follow. Generally, these codes contain the following main precepts:
(1) recognize the importance of keeping commitments and of seeking agreement and accommodation with regard to 368scheduling and extensions; (2) be respectful and act in a courteous, cordial, and civil manner; (3) be prompt, punctual, and prepared; (4) maintain honesty and personal integrity; (5) communicate with opposing counsel; (6) avoid actions taken merely to delay or harass; (7) ensure proper conduct before the court; (8) act with dignity and cooperation in pre-trial proceedings; (9) act as a role model to the client and public and as a mentor to young lawyers; and (10) utilize the court system in an efficient and fair manner.76
A few states have gone further and amended their oaths, sworn by new lawyers, to include a pledge of civility.77 For example, since 2003, the Lawyer’s Oath sworn by admittees of the South Carolina Bar has contained the following pledge: “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.”78
Finally, and actually putting teeth in these words, in South Carolina—as well as in a small smattering of states—a violation of the civility oath is a basis for professional discipline.79 Most other states, however, do not back up their codes or oaths with discipline. The California Attorney Guidelines of Civility and Professionalism, for instance, clearly state in the introduction:
These voluntary Guidelines foster a level of civility and professionalism that exceed the minimum requirements of the mandated Rules of Professional Conduct as the best practices of civility in the practice of law in California . . . . [T]hey are not to be used as an independent basis for disciplinary charges by the State Bar or claims of professional negligence.80
1.Are civility codes, as some contend, “uneasy bedfellows” with ethical rules requiring zealous pursuit of a client’s interest?81 In what ways are they similar to, and different from, the Model Rules?
3692.Some suggest that bar civility codes too often punt on contentious choices, providing, for example, that a lawyer should:
In critics’ view, civility codes that merely exhort lawyers not to be bullies unless bullying is “proper” unnecessarily duck the difficult but crucial issue, which is identifying precisely when zeal, bullying, or intimidation crosses the line of impropriety.83 Is that criticism fair, or do civility codes do as much as possible to strike a balance between appropriate and overly zealous advocacy?
3.One scholar has recently written:
The time for mandatory civility has long come, and all state bars should follow the lead of the few jurisdictions that made civility mandatory. Simply suggesting that attorneys follow civility guidelines does not adequately alter attorney behavior. Systemic behavior change will more likely occur when civil behavior is required and negative consequences accompany the failure to adhere to the required behavior in appropriate cases. Accordingly, if the legal profession truly wants to reduce unnecessary legal costs and provide greater respect for, and confidence in, the legal system and those who safeguard it, then each state bar should make civility mandatory by using specific civility rules.84
On the other hand, some suggest that enforceable civility codes are deeply problematic. Such codes, in critics’ view, are too subjective to provide a reasonable basis for professional discipline, invariably chill rights protected by the First and Fourteenth Amendments, are duplicative of other rules of ethics and civil procedure, and inhibit zealous advocacy.85 In addition, one commentator argues that civility codes reflect an “upper-middle-class view of professional conduct,” and that the “prestige hierarchy, patterns of deference, and the [civility codes] drafters’ patrician notions of civility suggest that the behavior of lawyers will be perceived differently along different class lines.”86 Do you agree? Given these competing considerations, would you support or oppose a mandatory civility code, backed by sanctions?
3704.Consider the following case that arose under South Carolina’s rule. A South Carolina lawyer representing a client in an acrimonious divorce case sent opposing counsel, “Attorney Doe,” an email stating that he had heard that the attorney’s daughter had been detained for purchasing heroin and cocaine. The email continued:
Does this make you . . . bad parents? This incident is far worse than the allegations your client is making. I just thought it was ironic. You claim that this case is so serious and complicated. There is nothing more complicated and serious than a having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night. . . . Think about it. Am I right?
The South Carolina Supreme Court rejected the emailing lawyer’s claim that the oath he took pledging “fairness, integrity and civility, not only in court, but also in all written and oral communications” was unconstitutionally vague or overbroad, and ultimately found that the lawyer had violated that oath. The court also found that the email was prejudicial to the system of justice and could “only inflame the passions of everyone involved . . . and undermine a lawyer’s ability to objectively represent his or her client.” In light of the attorney’s remorse, however, the court imposed only a private letter of caution.87 Was the incident handled appropriately?
5.In July 2017, one of President Trump’s lawyers, Marc E. Kasowitz, came under scrutiny for incivility. A stranger had sent Mr. Kasowitz an e-mail calling on him to resign from his post as the president’s personal lawyer. Said the individual:
I believe it is in your best interest and the long-term interest of your firm for you to resign from your position advising the President re. pending federal legal matters. No good can come of this and, in fact, your name may be [sic] turn out to be a disparaging historical footnote to the presidency of DJT.
Kasowitz responded to the individual by sending four profanity-laced and threatening e-mails within thirty-three minutes. One provided:
And you don’t know me, but I will know you
How dare you send me an email like that
I’m on you now. You are fucking with me now
Let’s see who you are
Watch your back, bitch.
To that, the individual responded, “Thank you for your kind reply. I may be in touch as appropriate.” Two minutes later, Kasowitz replied: “You are such a piece of shit. Call me. Don’t be afraid, you piece of shit. Stand up. If you don’t call, you’re just afraid. Call me.”88 Five minutes later, Kasowitz 371added: “I’m Jewish. I presume you are too. Stop being afraid. Call me. Or give me your number and I will call you. I already know where you live, I’m on you. You might as well call me. You will see me. I promise. Bro.”89 Soon thereafter, Kasowitz apologized, saying this his response was “inappropriate.”90
Does Kasowitz’s conduct constitute a violation of Model Rule 8.4? If the South Carolina civility code happened to apply here (under Rule 8.5, it admittedly does not), would the South Carolina rule encompass this conduct? Is this the kind of misconduct that should trigger disciplinary activity?
6.Social media posts are not known for civility and some lawyers have come to grief for their vulgar or threatening posts. One lawyer’s obscenity-laced Facebook message to his client’s ex-husband (and litigation adversary) began, “You pissed off the wrong attorney.” He called the ex-husband “pond scum,” threatened to rape him, and concluded: “I’ve got you in my sights now.” The result: The lawyer was arrested and indicted for felony intimidation. He claimed that he was merely trying to signal that the ex-husband could expect an aggressive defense.91
Joyce Nanine McCool, a Louisiana lawyer, was disbarred after circulating an online petition asking people to pressure two judges on behalf of her client, in a case she believed was a miscarriage of justice. She tweeted: “Judges are supposed to know shit about . . . the law . . . aren’t they. And like evidence and shit? Due process? [link to online petition].” Presciently, she then tweeted: “I am SO going 2 have 2 change jobs after this . . . ! I’m risking sanctions by the LA supreme court.”92
Notably, while McCool was disbarred, it was not for crudeness or incivility—at least not explicitly. She was charged with improper ex parte communication with the judges, disseminating false and misleading information, and prejudicing the administration of justice (because both judges recused themselves as a result of her social media campaign). Yet the tweets’ incivility figured into the Louisiana Supreme Court’s analysis. The court described McCool’s “social media blitz” as “nothing more than an orchestrated effort to inflame the public sensibility,” and added that causing the judges to recuse themselves, while “not as blatantly offensive as the blitzing itself . . . nevertheless prejudiced the administration of justice by causing undue delays.”93 Explaining why she recused herself, one of the judges testified, “A Judge is a human being also . . . I’ve never been one to run away from doing what I’ve been called to do, but this was just more than 372I could bear. . . . [I]t just would not stop.”94 One Louisiana justice dissented from McCool’s disbarment because, in his view, criticizing judges is constitutionally protected speech. He favored suspension for a year and a day, based on McCool’s false statements.95
Obviously, these are unusual cases. But colorful, memorable, and often crude expressions are not unusual on social media. Posters may believe that nothing else will get their posts noticed and their tweets re-tweeted. Should standards of civility make allowances for the exaggeration and crudeness of social media expression?96
At a contentious deposition, when plaintiffs’ counsel asked defense counsel not to interrupt her, defense counsel replied: “Don’t raise your voice at me. It’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”97
a)Does defense counsel’s statement violate Rule 8.4(g)? That rule provides:
It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.98
b)Does defense counsel’s statement violate Rule 8.4(d), which provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice?”
c)If you were second-chairing the deposition on behalf of the defendant, and it was your colleague, and senior partner, who made the remark, what, if anything, would you do or say?
d)Would a district court be justified in sanctioning defense counsel for this conduct? Per Fed. R. Civ. P. 30(d)(2), a district court “may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”
e)If the state had a civility code, should defense counsel be subject to sanctions for incivility?
References: Rule 8.4, Fed. R. Civ. P. 30(d)(2).
373Lee v. American Eagle Airlines, Inc.
U.S. District Court, Southern District of Florida
93 F. Supp. 2d 1322 (2000).
n Middlebrooks, District Judge.
This Cause came before the Court upon Plaintiff’s Amended Verified Motion for Attorney’s Fees and Costs, filed November 4, 1999. The Court has reviewed the pertinent portions of the file and is otherwise fully informed in the premises.
I. Introduction
“Let’s kick some ass,” Marvin Kurzban said loudly to his client, Anthony Lee, and his co-counsel, Ira Kurzban. I had taken the bench, and Court was in session. Opposing counsel and their client representatives were seated across the aisle. The jury was waiting to be called into the courtroom. Mr. Kurzban’s comment was suited more to a locker room than a courtroom of the United States, and the conduct of Plaintiff’s counsel that followed disrupted the adversary system and interfered with the resolution of a civil dispute.
The trial of this case lasted approximately fourteen days. The jury found that American Eagle Airlines had subjected Mr. Lee to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964. . . . As compensation, the jury awarded Mr. Lee $300,000. In addition, the jury awarded Mr. Lee $650,000 in punitive damages. . . . This motion seeking attorney’s fees and costs pursuant to 42 U.S.C. § 1988 followed.
As the prevailing party in a Title VII action, the Plaintiff now seeks $1,611,910.50 in attorney’s fees. This request presents the question of whether unprofessional and disruptive conduct of counsel which prolongs the proceedings and creates animosity which interferes with the resolution of a cause can be considered in determining an award of attorney’s fees. . . .
II. Findings of Fact Pertaining to Misconduct by Counsel
Discovery in this case was rancorous from the beginning. As is often the case, counsel for both sides contributed to the lack of civility. The tone of depositions was harsh, witnesses were treated with discourtesy, and discovery disputes were abundant. The transcripts of the depositions in this case are weighted down with bitter exchanges between the lawyers. . . .
Testimony at the evidentiary hearing reflected that this uncivil conduct also continued during conversations between counsel. The testimony of a young lawyer formerly with the Defendant’s counsel’s law firm was particularly poignant. This lawyer testified that during telephone conversations with Ira Kurzban, she was hung up on, told that 374she had only been assigned to work on the case because she was African-American, and wrongly accused of misrepresentations. She testified that her experience with opposing counsel in this case was a factor in her decision to leave her litigation practice.
This testimony was not only powerful and credible, but it also reflects the corrosive impact this type of unprofessional behavior can have upon the bar itself. A litigation practice is stressful and often exhausting. Unprofessional litigation tactics affect everyone exposed to such behavior and the ripple effect of incivility is spread throughout the bar.
The trial began. Testimony at the evidentiary hearing reveals that Mr. Kurzban’s “Let’s kick some ass” comment was not an aberration. A client representative of the Defendant, a lawyer for American Airlines, testified that she and others were subjected to a barrage of comments out of the hearing of the Court and jury which she likened to trash talk at a sporting event. Local counsel for the Defendant was called a “Second Rate Loser” by Marvin Kurzban. She testified that each day as court began, Marvin Kurzban would say, “Let the pounding begin.” In front of defense counsel’s client, Mr. Kurzban would ask, “How are you going to feel when I take all of your client’s money?” When walking out of the courtroom, Marvin Kurzban would exclaim, “Yuppies out of the way.” . . .
[The judge then proceeds to detail numerous additional examples of misbehavior by Marvin and Ira Kurzban, including eye rolling, flailing arms, speaking with a witness during a break after being warned not to, looking upward at the ceiling when their objections were overruled, making belligerent comments to opposing counsel, and insulting the court reporter. Apparently too, when the judge admonished him for laughing at one adverse ruling, “Ira Kurzban then listed a litany of complaints about rulings which he stated should result in a mistrial.” The judge added: “When offered a mistrial, the Plaintiff declined.”]
During a cross-examination concerning how much time the witness spent on various shifts, Marvin Kurzban held a file towards the witness and asked:
Marvin Kurzban: I have your personnel file (indicating). How many times did you have to work between 1992 and 1994, sir? Do you think it was more than a handful of times?
After an objection, and out of the presence of the jury, I asked Mr. Kurzban for the witness’s personnel file. He responded:
Marvin Kurzban: Actually, we do have Mr. Blades’s personnel file, when it was produced among all the other personnel files in Miami of the people. I don’t know if that box is here or I left it in the office. I think the personnel files that we were given by counsel is in the office.
The Court: So it wasn’t in the folder that you picked up and carried to the stand?
375Marvin Kurzban: No it wasn’t, Your Honor.
The Court: You said, “Mr. Blades, we have your personnel file here!”
* * *
The Court: You believe it is permissible to pick up a file from your desk, carry it to the witness stand and tell the witness “Mr. Blades, we have your personnel file,” and then begin questioning him? You believe that’s appropriate court examination?
Marvin Kurzban: I do, on hostile witnesses; on cross-examination, I believe that I’m entitled to have that witness believe I’m going to question him on something whether or not I have that in my hand or not. Yes, I do. . . .
Mr. Kurzban insisted that he had the personnel file back at his office. He was asked to produce it and he responded that he would the following day. The file was never produced.
At the end of the trial, defense counsel Connor approached Ira Kurzban and offered his hand in congratulations. Mr. Kurzban refused to shake his hand. The trial ended much like it had begun.
At the evidentiary hearing, Plaintiff’s counsel were unrepentant, attacking opposing counsel and accepting no responsibility for their own actions. They argued that the perceived misconduct was only a matter of style and the exercise of first amendment rights. In keeping with that “style,” Marvin Kurzban ended the hearing with the proclamation that he had called his opponent a loser, but not a second-rate loser because, “I don’t rate losers.” Mr. Kurzban’s testimony reflects that he has no clue about what it means to be a lawyer.
III. Analysis
Courts presiding over civil rights actions may, in their discretion, award the prevailing party a “reasonable attorney’s fee (including expert fees)” as part of its costs. . . .
Courts determining attorney’s fee awards begin by determining the “lodestar”: the product of the number of hours reasonably expended on the litigation and a reasonable hourly rate for the attorney’s services. This lodestar may then be adjusted for the results obtained.
“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar service by lawyers of reasonably comparable skills, experience, and reputation.” . . . As explained more fully in the findings of misconduct, contained in Section II, supra, the conduct of Ira Kurzban and Marvin Kurzban both during and prior to trial was very troubling. In my estimation, the manner in which a lawyer interacts with opposing counsel and conducts himself before the Court is as indicative of the lawyer’s ability and skill as is mastery of the rules of evidence. Upon review of the trial transcripts and the evidence presented 376during the evidentiary hearing on attorney conduct and based on observations at trial, I find that the conduct of Ira Kurzban and Marvin Kurzban in the litigation of this case fell far below acceptable standards, especially in light of the $300 hourly rate the attorneys claim. Accordingly, I find “special circumstances” justifying a departure from counsels’ requested rates: Ira Kurzban shall be awarded $150 per hour for his pretrial work and $0 for his trial work; Marvin Kurzban’s rate for this action is $0. . . .
I believe that this reduction in attorney fees is an appropriate response to the conduct by Plaintiff’s counsel in this case, but I am not convinced it will deter future misconduct. I frankly considered denying fees altogether but while I have reviewed many of the depositions, I did not observe everything that happened during the pretrial phase of the case. The reduction in attorneys’ fees based upon misconduct of counsel is therefore approximately $358,423.20. . . .
Based on the foregoing we award Plaintiff $312,324.63 in fees and costs. Furthermore, because of the misconduct of counsel which occurred in this case, a copy of this order shall be sent to the Florida Bar and the Peer Review Committee for the Southern District of Florida for any action deemed appropriate.
1.Notice that in American Eagle, the judge awards the Kurzbans $312,324.63 in fees and costs, and “fines” them (in the form of a fee-reduction) $358,423.20. Was the fee reduction excessive? Did Judge Middlebrooks abuse his discretion when he held that “the manner in which a lawyer interacts with opposing counsel and conducts himself before the Court is . . . indicative of the lawyer’s ability and skill” and therefore cut back the Kurzbans’ hourly rate because of their uncivil behavior?
2.Among the instances of “incivility” that the judge details are several remarks the Kurzbans made during trial about the judge’s bias against them. The opinion notes that the Kurzbans did not pursue a mistrial on account of judicial bias. If attorneys believe that a judge is behaving in a biased manner but do not wish to ask for a mistrial—perhaps because they believe that they are persuading the jury—what should they do? Are the Kurzbans being punished for standing up for their client? Does civility require lawyers to act as though they agree with a judge’s unfavorable rulings?
3.Was it misconduct for Marvin Kurzban to pretend that papers in his hand were a witness’s personnel file when in fact they were not? If so, what sanction would be appropriate?
4.The Kurzbans claimed that their “perceived misconduct was only a matter of style and the exercise of first amendment rights.” Is this correct? Would non-binding civility codes do anything to restrain the kind of conduct that Judge Middlebrooks found objectionable here?
3775.Judges have little to say about defendant’s fees. In light of that asymmetry, does Lee v. American Eagle Airlines disadvantage civil rights plaintiffs, who must often rely on the court for fees? More generally, is this a case in which small-firm plaintiffs’ lawyers, who may believe they have to fight harder for clients to make up for resource and reputational deficits, are treated unfairly relative to big-firm counterparts?
6.In 2019, nearly two decades after Lee, Marvin Kurzban was permanently (and voluntarily) disbarred for two instances of “discourteous and unprofessional” conduct in a medical malpractice case. In the first, Kurzban posed questions to a witness implying that opposing counsel had fabricated evidence. The questions led to a mistrial. The judge sanctioned Kurzban, requiring him to pay all legal fees in the case. Then, in the retrial, Kurzban made “an inappropriate comment as to not wanting to engage in a ‘cat fight’ which appeared targeted toward opposing counsel and the judge, both of whom are female.”99
7.Consider In re First City Bankcorporation of Texas, Inc., 282 F.3d 864 (5th Cir. 2002). There, a “zealous” lawyer referred to opposing counsel as a “stooge,” a “puppet,” a “deadhead,” and an “underling who graduated from a 29th tier law school.” The bankruptcy court in which the case was originally heard imposed a $25,000 sanction for this conduct. Appealing before the Fifth Circuit, the lawyer argued that his behavior was an appropriate trial tactic, which gave him the upper hand in settlement negotiations. If you had been on that Fifth Circuit panel, would you have upheld the $25,000 penalty?
8.In a bellwether trial defending Merck, the maker of Vioxx (a pain reliever that caused strokes and heart attacks), defense attorney Diane P. Sullivan repeatedly violated the trial judge’s orders. She reportedly showed the jury evidence that she had been warned not to show, implied information that was not true, and made arguments she had been advised not to make. The trial judge, Carol Higbee, ultimately said, in exasperation: “You don’t accept my rulings.” But Sullivan apparently was not moved; the disobedience continued throughout the trial.100 Later, the plaintiffs’ lawyer complained to Judge Higbee: “You set down the rules for us. They’re like shackles that we wear. Diane has thrown off her shackles but I’m shackled to my chair.”101
Still, the strategy seemed to work. Sullivan received a favorable verdict for Merck. In 2012, The American Lawyer featured her in its “Litigator of the Year” edition, noting that she “isn’t a hired gun; she’s more like a hired bazooka repeatedly parachuting into high-stakes cases leading up to trial and securing victories.” And, in 2010, Ms. Sullivan was named by Law360 as one of the most admired attorneys in the nation based on a survey of her peers and in-house counsel.102 How do you reconcile Sullivan’s acclaim with 378the material by Bartlett H. McGuire above, arguing that it is in a lawyer’s self-interest to behave with civility?
3.Uncivil Motions—and Oppositions
Jayhawk Capital Mgmt., LLC v. LSB Indus.
U.S. District Court, District of Kansas
2011 WL 1626581, Case No. 08-2561-EFM (2011).
Order on Motion to Continue
This matter is currently set for trial commencing June 14, 2011. Defendants seek a brief continuance, noting that one of their counsel, Bryan Erman, along with his wife, is expecting their first child due on July 3. Given the proposed length of trial and the famous disregard that newborns (especially first-borns) have for such schedules, and given that the trial is scheduled in Kansas City while the new Erman’s arrival is scheduled in Dallas, Defendants move this Court for a continuance.
This in itself would not be remarkable, but in reviewing the motion the Court was more than somewhat surprised to read that “Plaintiffs have refused to agree to continue the trial setting and have indicated that they intend to oppose this Motion.” Well, every party is entitled to file an opposition to a motion, and hoping that perhaps Defendants had mischaracterized the vigor of Plaintiffs’ opposition, we have eagerly awaited Plaintiffs defense of its opposition. The Memorandum in Opposition arrived yesterday, and it was, sadly, as advertised.
First, Plaintiffs make a lengthy and spirited argument about when Defendants should have known this would happen, even citing a pretrial conference occurring in early November as a time when Mr. Erman “most certainly” would have known of the due date of his child, and even more astonishingly arguing that “utilizing simple math, the due date for Mr. Erman’s child’s birth would have been known on approximately Oct. 3, or shortly thereafter.” For reasons of good taste which should be (though, apparently, are not) too obvious to explain, the Court declines to accept Plaintiffs’ invitation to speculate on the time of conception of the Ermans’ child.
Further, Plaintiffs assert that there are currently five attorneys from two different firms on Defendants’ signature block. While the Court might be inclined to agree with Plaintiffs that this seems like a plethora of attorneys, it can’t help but note that, entered and active on behalf of Plaintiffs in this case, are also five attorneys, from three different firms; so perhaps Plaintiffs are ill equipped to argue that Defendants have too many attorneys.
Finally, Plaintiffs argue that surely Mr. Erman will have sufficient time to make it from the Kansas City trial to the Dallas birth, even helpfully pointing out the number of daily, non-stop flights between the two cities; and in any event complain of the inconvenience of this late 379requested continuance. Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role. Counsel are encouraged to order their priorities similarly. Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED. IT IS SO ORDERED.
1.What do you make of Jayhawk? Should the plaintiffs’ lawyers have opposed this motion? Should they have been subject to sanctions for their opposition?
2.Could clients do more to encourage civility by their counsel? A growing number of large corporations are including expectations of civil behavior in their retainer agreements.103 So, for example, for a time Walmart was notorious for its aggressive litigation tactics. But more recently it has attempted to modify its reputation by requiring outside counsel to:
Honor the spirit, intent, and requirements of all rules of civil procedure and rules of professional conduct. . . . Adhere to the principles and rules of conduct which further the truth-seeking process so that disputes will be resolved in a just, dignified, courteous, and efficient manner. . . . Make reasonable responses to discovery requests. . . .
The agreement goes on to say: “Sanctions for discovery violations will not be tolerated and may result in the immediate termination of Outside Counsel.”104 Is this window dressing or a meaningful constraint on the tactical choices of outside counsel?
3.Consider the following brief slip opinion, which was widely circulated among litigators at the time it was issued.
Babbitt v. National Mining Association
U.S. District Court, District of Columbia
Civil Case No. 00-0274 (JR), slip op. at 1–2 (2001).
MEMORANDUM ORDER
The recent heated exchange between plaintiffs and intervenor on the subject of whether NMA should have filed a statement of material facts pursuant to Rule 56.1 or not, whether the Court has granted plaintiffs’ motion for leave to file supplemental authority or not, etc., betrays a startling lack of sense of humor, or sense of proportion, or both, especially since it appears to be agreed that the facts relevant to this case are all in the administrative record. It is this 21st day of May, 2001,
380ORDERED that plaintiffs’ Rule 56.1 statement is not “rejected,” that it will remain of record, and that it may remain as “context” for NMA’s arguments. And it is
FURTHER ORDERED that the parties lighten up.
Compare with Mattel, Inc. v. MCA Records, 296 F.3d 894, 908 (9th Cir. 2002): “The parties are advised to chill.” What do you make of these orders? Are they helpful or counterproductive?
You are an attorney defending a client in a contentious product liability action. The plaintiff’s lawyer, a solo practitioner who has been difficult to deal with in the past, calls and asks you to stipulate to moving the hearing date on a summary judgment motion because her grandfather has just passed away. Though she will be back in town by the hearing date, she will be away the week prior to the hearing attending her grandfather’s funeral. With your consent, the lawyer would like to file an unopposed motion to move the hearing date, but if not, she will be forced to file a motion on her own.
This summary judgment hearing is critical to the case, and you know, too, that if the hearing is held at the originally scheduled time, your opposing counsel will likely be flustered and inadequately prepared, improving your client’s odds. You also know that a court is unlikely to grant the motion without your consent, since the opposing counsel technically can attend the hearing. Finally, your client is really eager to have this case concluded; you believe your client will be somewhat prejudiced if the summary judgment hearing is heard a few weeks later than currently scheduled.105
How do you proceed? You are in a jurisdiction with a civility code that is part of the lawyer’s oath. Does the existence of this civility code affect your judgment?
References: Rules 1.2, 1.4, 1.7.
E.Witness Preparation and Coaching
One of the most common dilemmas in criminal and civil trials involves witness preparation, a practice forbidden in most countries. Marvin Frankel summarizes the process as follows:
The [adversary] contest by its very nature is not one in which the objective of either side, or of both together, is to expose “the truth, the whole truth, and nothing but the truth.”
That the quoted words, from the witness’s oath, are not meant quite literally may be seen from more than one perspective. Consider the lawyer’s major work of interviewing and 381“preparing” witnesses, including the client who plans to take the stand. . . . [E]very lawyer knows that the “preparing” of witnesses may embrace a multitude of other measures, including some ethical lapses believed to be more common than we would wish. . . .
Moving away from palpably unsavory manifestations, we all know that the preparation of our witnesses is calculated, one way and another, to mock the solemn promise of the whole truth and nothing but. To be sure, reputable lawyers admonish their clients and witnesses to be truthful. At the same time, they often take infinite pains to prepare questions designed to make certain that the controlled flow of truth does not swell to an embarrassing flood. “Don’t volunteer anything,” the witnesses are cautioned. The concern is not that the volunteered contribution may be false. The concern is to avoid an excess of truth, where the spillover may prove hurtful to the case. . . .106
Above, Frankel teases out the fact that preparing witnesses can assist, as well as subvert and distort, truth-finding processes. It can help nervous, shy, unsophisticated, or reticent individuals testify effectively. Skillful coaching can also help witnesses avoid annoying mannerisms, suspicious hesitations, unduly technical language, rambling answers, and prejudicial phrasing. But once that coaching crosses a narrow and often blurry line, it is broadly (and properly) condemned as unethical.
An interesting historical case study on the rationale and risks of witness preparation emerged in a New York Law Journal exchange on the seventy-fifth anniversary of the famous Triangle Shirtwaist factory fire. That disaster, in which 146 young, mostly immigrant women burned to death, became a turning point in the struggle for protective labor legislation. It also resulted in a celebrated criminal prosecution of the factory owners for violation of safety statutes. After poignant testimony from one of the victims, defense counsel requested that she repeat her narrative. When she provided an almost verbatim repetition, the lawyer asked about one word she had used in her first but not second account. After repeating the testimony silently to herself, moving her lips slightly in the process, the witness confirmed that she had erroneously omitted the word. After briefly changing the subject, counsel then repeated the strategy with similar results. The obviously rehearsed nature of the victim’s testimony helped to undermine the credibility of the prosecution’s case and to secure an acquittal. A New York Law Journal article commending the defense counsel’s performance provoked an angry letter to the editor in response. Its authors noted that many women 382who testified in the case needed rehearsing; they spoke little or no English and were traumatized by the fire and court proceedings.107
So, how should a lawyer draw the line between proper and improper preparation? Regrettably, the Model Rules offer little guidance. As Professor Charles Silver has put it: “Everyone knows that it is wrong to ask a witness to lie. What is not known is how far a lawyer can properly push a witness short of that.”108
The closest authority on point is Rule 3.4(b), which advises that “[a] lawyer shall not . . . counsel or assist a witness to testify falsely.” And Rule 8.4(c), of course, specifies that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”109 The Restatement (Third) of Law Governing Lawyers § 116, cmt. b offers a somewhat more detailed analysis. Entitled “Interviewing and Preparing a Prospective Witness,” it provides:
[Proper preparation] may include the following: discussing the role of the witness and effective courtroom demeanor; discussing the witness’s recollection and probable testimony; revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light; discussing the applicability of law to the events in issue; reviewing the factual context into which the witness’s observations or opinions will fit; reviewing documents or other physical evidence that may be introduced; and discussing probable lines of hostile cross-examination that the witness should be prepared to meet. Witness preparation may include rehearsal of testimony. A lawyer may suggest choice of words that might be employed to make the witness’s meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact.
The Reporters’ Note acknowledges: “The . . . Comment on witness preparation is supported by relatively sparse authority but, it is believed, by the uniform practice of lawyers in all jurisdictions.”
3831.How would you distinguish between appropriate and inappropriate witness preparation? Does the Restatement § 116 strike the right balance? Of coaching, one court famously explained:
While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.
Matter of Eldridge, 82 N.Y. 161, 171 (1880). Is that view realistic? Alternatively, the U.S. Supreme Court has advised: “An attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3 (1976). Is that possible?
2.A preliminary draft of the Model Rules included a provision that would have prohibited lawyers from giving advice that they could “reasonably foresee will aid a client in giving false testimony.” Would you favor adoption of such a rule?
3.A longstanding dispute has centered on the technique of counseling the client about the law before inquiring about the facts. An example would be for a lawyer to say, in a slip-and-fall case: “Now, you could only recover if the material on which you slipped had been there for a long time and showed signs of grit and dirt. Now, can you describe the material on which you fell? Was it pristine or was it gritty and dirty?” Some defend the practice:
[I]t is not the lawyer’s function to prejudge his client as a perjurer. He cannot presume that his client will make unlawful use of his advice. . . . There is a natural predisposition in most people to recollect facts, entirely honestly, in a way most favorable to their own interest. . . . Before he begins to remember essential facts, the client is entitled to know what his own interests are. . . . To decide otherwise would . . . penalize the less well-educated defendant.110
Others disagree. In critics’ view, it is asking too much to provide a reason to lie and then ask for the truth. It is “hard enough to get essential facts without supplying a motive to distort them.”111 What’s your view? Should a lawyer ever start an inquiry by summarizing the law? If so, under what circumstances?
4.While common in the United States, witness preparation is forbidden in most countries. Indeed, according to the Pre-Trial Chamber of the International Criminal Court (ICC), witness preparation would be “either 384unethical or unlawful in jurisdictions as different as Brazil, Spain, France, Belgium, Germany, Scotland, Ghana, England and Wales and Australia.”112 Would the United States be better off if we, too, banned witness preparation entirely? What would be gained and what would be lost?
You represent a defendant in a case involving an expert scientific witness from Switzerland. He has never participated in a legal proceeding before and is quite nervous. His English, although perfectly adequate, is heavily accented and requires careful attention to follow. When you prepare him for testifying, he gives cautious, heavily qualified, “two-handed” answers (“on the one hand . . . ; on the other hand”). He frequently uses technical jargon which he cannot explain clearly, or even correctly (as you know from your own preparations for the case, which included carefully studying textbooks on the scientific issues). When you repeat questions, he occasionally gives different answers the second time around.
a)During preparation, can you remind him of the correct definitions of technical concepts and rehearse him until he is able to explain them clearly?
b)Can you tell him that his cautious answers are no good? Can you tell him which of his “on the other hands” to leave out because they are damaging?
c)Can you explain the legal theory of the case to him so that he better understands why certain ways that he put things might be unhelpful? Can you propose alternative phrasings to him?
d)Can you insist that he testify through an interpreter?
e)After two hours of trial preparation, the witness says in frustration and panic, “Just tell me what to say.” How do you respond?
References: Rules 1.2(d), 3.3(a)(3), 3.4(b), 8.4(c).
1Fed. R. Civ. P. 11, Advisory Comm. Note, reprinted in 97 F.R.D. 165, 198 (1983).
2Georgene Vairo, Rule 11 and the Profession, 67 Fordham L. Rev. 589, 625–26 (1998).
3Id. (compiling evidence); see Lawrence C. Marshall et al., The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943, 960, 964 (1992) (reporting that close to a quarter of respondent attorneys reported that Rule 11 prompted them to engage in “more factual investigation”).
4See Lonny Hoffman, The Case Against the Lawsuit Abuse Reduction Act of 2011, 48 Hous. L. Rev. 565, 553 (2011) (“The available empirical evidence persuasively demonstrates the profound discriminatory effects of the 1983 version of Rule 11.”).
5 Fed. R. Civ. P. 11( b ) .
6Fed. R. Civ. P. 11, Advisory Comm. Note to 1993 amendments.
7Fed. R. Civ. P. 11(c)(2). Many believe this safe harbor is important because it eliminates a big problem observed with the 1983 version of Rule 11: that it had the effect of disincentivizing the withdrawal of objectionable filings because, as the Advisory Committee put it, “parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11.” Fed. R. Civ. P. 11, Advisory Comm. Note to 1993 amendments.
8David Rauma & Thomas E. Willging, Fed. Judicial Ctr., Report of a Survey of United States District Judges’ Experience and Views Concerning Rule 11, Federal Rules of Civil Procedure 4 (2005).
9Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse 281 (5th ed. 2013).
10Restatement (Third) of the Law Governing Lawyers § 110, cmt. b (2000).
11Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519, 596 (1997).
12Chris Guthrie, Frivolous Litigation: A Psychological Theory, 67 U. Chi. L. Rev. 163, 185–86 (2000) (“For most litigants and attorneys . . . a frivolous case is simply a case in which the plaintiff has a low probability of prevailing at trial.”).
13Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All?, 24 Osgoode Hall L.J. 353, 375 (1987) (quoting Letter from Judge Frank Easterbrook).
14Restatement (Third) of the Law Governing Lawyers § 110, cmt. d (2000).
15Eric Rasmusen, Predictable and Unpredictable Error in Tort Awards: The Effect of Plaintiff Self-Selection and Signaling, 15 Int’l Rev. L. & Econ. 323, 337 (1995).
16Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times, Oct. 31, 2015, at A1. For more on Mr. Dempsey’s ordeal, see Daniel Dempsey, Tyranny of the Arbitrators, Medium (Apr. 1, 2015), https://medium.com/@dempsey/tyranny-of-the-arbitrators-5b5526489338.
17See Deborah L. Rhode, Frivolous Cases and Civil Justice Reform: Misconceiving the Problem, Recasting the Solution, 54 Duke L.J. 447 (2004).
18D. Michael Risinger, Honesty in Pleading and Its Enforcement: Some “Striking” Problems with Federal Rule of Civil Procedure 11, 61 Minn. L. Rev. 1, 57 (1976).
19Monroe H. Freedman, The Professional Obligation to Raise Frivolous Issues in Death Penalty Cases, 31 Hofstra L. Rev. 1167, 1174 (2006); see also Merriam-Webster Definition of “facetious,” available at http://www.merriam-webster.com/dictionary/facetious.
20Freedman, supra note 19, at 1172–73 (internal quotation marks omitted).
21Eastway Constr. Corp. v. City of New York, 637 F. Supp. 558, 575 (E.D.N.Y. 1986), modified, 821 F.2d 121 (2d Cir. 1987).
22Nassau-Suffolk Ice Cream, Inc. v. Integrated Res., Inc., 114 F.R.D. 684, 689 (S.D.N.Y. 1987); see generally Melissa L. Stuart, A Young Lawyer’s Guide to Rule 11 Sanctions, ABA Trial Practice (June 20, 2012), https://www.americanbar.org/groups/litigation/committees/trial-practice/articles/2012/spring2012-young-lawyers-guide-rule11-sanctions/.
23See William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook: The Limits of Zealous Advocacy 55 (2d ed. 2001).
24Letter from the Chamber of Commerce to the H. Comm. on the Judiciary (Apr. 14, 2015).
25Id.
26Bill Targets “Frivolous Suits,” But Critics Say It Misses Mark, Bloomberg Law: Prod. Safety & Liab. Rep., May 1, 2017, at 1 [hereinafter Bloomberg Rep.].
27See generally Hoffman, supra note 4.
28See Nora Freeman Engstrom, Congressional Tinkering with the Civil Justice System Is Misguided and Dangerous, Legal Aggregate (Mar. 14, 2017), https://law.stanford.edu/2017/03/14/congressional-tinkering-with-the-civil-justice-system-is-misguided-and-dangerous/ (citing Rauma & Willging, supra note 8).
29Bloomberg Rep., supra note 26 (quoting Professor Benjamin Spencer).
30For more on these various mechanisms, see Nora Freeman Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639, 675–91 (2017).
31For an example of this type of motion, see Lara Bazelon, What it Takes to Be a Trial Lawyer If You’re Not a Man, The Atlantic, Sept. 2018.
32Former Emps. of Chevron Prods. Co. v. U.S. Sec’y of Labor, 245 F. Supp. 2d 1312, 1323 n.7 (Ct. Int’l Trade 2002).
33Fortune et al., supra note 23, at 330–32.
34Restatement (Third) of the Law Governing Lawyers § 111, cmt. (c).
35Tyler v. State, 47 P.3d 1095, 1108 (Ala. Crim. App. 2001).
36Geoffrey Hazard & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 3.3, at 206 (2d. ed. 1990).
37Rule 1.0(m).
38Compare William H. Simon, Role Differentiation and Lawyer’s Ethics: A Critique of Some Academic Perspectives, 23 Geo. J. Legal Ethics 987, 990 (2010), with Stephen Pepper, Integrating Morality and Law in Legal Practice: A Reply to Professor Simon, 23 Geo. J. Legal Ethics 1011, 1039 (2010).
39Fortune et al., supra note 23, at 329 (quoting Eugene R. Gaetke).
40Stanley Sporkin, The Inside Scoop, Litig. (Spring 2001), at 3.
41Monroe H. Freedman, Arguing the Law in an Adversary System, 16 Ga. L. Rev. 833, 838 (1982) (“[I]t is tactically desirable for the lawyer to cite and refute uncited authorities that are arguably adverse.”); see, e.g., Alfonso v. Florida, 633 So. 2d 126, 126 n.1 (Fla. Dist. Ct. App. 1994) (commending attorneys for citing adverse precedent not disclosed by opposing counsel).
42Texas law requires that a minor’s parent be notified if she decides to have an abortion, and the minor’s parent must give his or her consent. Pursuant to Texas law, Doe sought a judicial bypass of these requirements. The Texas courts granted that bypass on September 25, 2017, determining that Doe was mature enough to decide for herself whether to continue the pregnancy.
43See Recent Cases, 131 Harv. L. Rev. 1812, 1813 (2018).
44Petition for a writ of certiorari, Hargan v. Garza, No. 17–654, at 13 (quoting Email from Resp. Att’y to Pets. Att’y (Oct. 24, 2017)).
45Id. at 14–15 (“Later that night, Ms. Doe’s guardian ad litem informed the Texas shelter and the AUSA that Ms. Doe’s appointment had been moved to 4:15 a.m. Central Time. The email did not explain the reason for the change nor state that the appointment was now for an abortion. . . . Although the change in the appointment time caused shelter staff to wonder later that night whether the nature of the appointment also might have changed, they were never told that the early-morning appointment would be for an abortion rather than counseling.”) (citations omitted).
46Letter from David D. Cole, Nat’l Legal Dir., ACLU, to Noel J. Francisco, Solicitor Gen., at 2 (Oct. 30, 2017).
47Petition for a writ of certiorari, Hargan v. Garza, No. 17–654, at 26.
48Reply Brief for the Petitioners, Hargan v. Garza, No. 17–654, at 2–3.
49Id. at 7–9.
50Brief in Opposition, Hargan v. Garza, No. 17–652, at 23.
51Azar v. Garza, 138 S. Ct. 1790, 1793 (2018).
52For further discussion, see Adam Liptak, Justices Deny U.S. Request to Discipline A.C.L.U., N.Y. Times, June 4, 2018, at A14; Marty Lederman, The SG’s Remarkable Cert. Petition in Hargan v. Garza, the “Jane Doe” Abortion Case (Nov. 8, 2017), https://balkin.blogspot.com/2017/11/the-sgs-remarkable-cert-petition-in.html.
53Hickman v. Taylor, 329 U.S. 495, 507 (1947).
54Wayne D. Brazil, Civil Discovery: Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 Am. B. Found. Res. J. 789, 829 (quoting Chicago litigator).
55Marvin E. Frankel, Partisan Justice 18 (1980).
9The applicable discovery rules do not adequately address the attorneys’ misconduct in this case. Rule 26(g) only imposes liability upon the attorney who signed the discovery request or response. Similarly, Rule 37(a) authorizes sanctions against a party or attorney only if a motion to compel is filed; Rule 37(b) authorizes sanctions against a party or an attorney if the party fails to comply with a discovery order; and, Rule 37(c) only imposes liability upon a party for the party’s failure to comply with various discovery obligations. Under a strict interpretation of these rules, the only attorney who would be responsible for the discovery failure is Kevin Leung because he signed the false discovery responses. However, the Court believes the federal rules impose a duty of good faith and reasonable inquiry on all attorneys involved in litigation who rely on discovery responses executed by another attorney. . . . The facts of this case also justify the imposition of sanctions against these attorneys pursuant to the Court’s inherent power.
10Leung’s attorney represented during the OSC hearing that Leung requested a more thorough document search but that Qualcomm refused to do so. If Leung was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys. If Mammen and Batchelder were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence. . . .
56Qualcomm Inc. v. Broadcom Corp., 2008 WL 638108 (S.D. Cal. 2008).
57Qualcomm Inc. v. Broadcom Corp., 2010 WL 1336937 (S.D. Cal. 2010).
58Id. at *2–3, 5.
59Id. at *4.
60Id.
61Zusha Elinson, Changing a Judge’s Mind on Qualcomm Sanctions, Cal. Law (Apr. 12, 2010).
62Qualcomm Inc. v. Broadcom Corp., 2010 WL 1336937, at *1 (S.D. Cal. 2010).
63Lessons from Qualcomm, Legal Ethics Forum, http://legalethicsforum.typepad.com/blog/2008/01/lessons-from-qu.html. For additional lessons, see Judge Robert B. Collings, Qualcomm v. Broadcom—Some Lessons for E-Discovery Practitioners, 52 Boston B.J., Oct. 2008, at 20, 23–24.
64Kashmir Hill, An Interview with One of the Qualcomm Six, Adam Bier, Above the Law (Apr. 15, 2010), http://abovethelaw.com/2010/04/an-interview-with-one-of-the-qualcomm-six-adam-bier-or-horror-story-from-a-young-associate-wrongfully-sanctioned-and-job-hunting-during-the-great-recession/.
65For an argument that the discovery abuse problem is exaggerated, see Linda S. Mullenix, The Pervasive Myth of Pervasive Discovery Abuse: The Sequel, 39 B.C. L. Rev. 683 (1998); cf. John F. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547 (2010) (arguing that empirical studies which paint a bright picture of civil discovery were conducted, mostly, before the advent of electronic discovery).
66Louis Harris & Associates, Judges’ Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U. L. Rev. 731, 737 (1989). State court judges reported much the same. Id.
67Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765, 786 (2010); James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C. L. Rev. 613 (1998).
68Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 858 P.2d at 1083.
69Id. at 1079–80.
70Monroe H. Freedman, Masking the Truth to Resolve Competing Duties, Legal Times, Sept. 11, 1996, at 22.
71Ralph Nader & Wesley J. Smith, No Contest 126 (1996) (quoting Aronson).
72Alex Fryer, Clout of State’s Big Law Firms Wards Off Misconduct Cases, Seattle Times, May 3, 1998, at F1.
73Sandra Day O’Connor, Professionalism, 76 Wash. U. L.Q. 5, 7–8 (1998).
74Bartlett H. McGuire, Reflections of a Recovering Litigator: Adversarial Excess in Civil Proceedings, 164 F.R.D. 283, 286–90 (1996). The “considerations” are numbered in McGuire’s original text. Numbers are removed here for clarity.
75Cheryl B. Breston & Hilary Lawrence, Incentivizing Lawyers to Play Nice: A National Survey of Civility Standards and Options for Enforcement, 48 U. Mich. J.L. Reform 701, 707–08 (2015); David A. Grenardo, Making Civility Mandatory: Moving from Aspired to Required, 11 Cardozo Pub. L. Pol’y & Ethics J. 239, 242 (2013).
76Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99, 103 n.20 (2012).
77See Lasalle v. Vogel, 248 Cal. Rptr. 3d 263, 267 (Cal. Ct. App. 2019) (noting that, “[s]ince 2014, new attorneys [in California] have been required to vow to treat opposing counsel with “dignity, courtesy, and integrity”); Order Amending Supreme Court Rule 73 (Nev.), Mar. 5, 2014 (mandating that Nevada attorneys swear to conduct themselves “in a civil and professional manner, whether dealing with clients, opposing parties and counsel, judicial officers or the general public, and . . . promote the administration of justice”); In re Oath of Admission to the Fla. Bar, 73 So. 3d 149 (Fla. 2011) (amending the Oath of Admission to the Florida bar to include language concerning civility).
78S.C. App. Ct. R. 402(k)(3).
79See Grenardo, supra note 75, at 243, 253–59.
80State Bar of Cal., Attorney Guidelines of Civility and Professionalism (2007), http://www.calbar.ca.gov/portals/0/documents/publicComment/2007/Civility-Guide-Prop-Long-14.pdf.
81Robert S. Huie, Uneasy Bedfellows?, Nat’l L.J., Mar. 6, 2006, at 23.
82Deborah L. Rhode, Professionalism, 52 S.C. L. Rev. 458, 459–60 (2001).
83Id.
84Grenardo, supra note 75, at 243; Breston & Lawrence, supra note 75, at 737 (concluding that “violating creeds should be linked to tangible consequences”).
85See id. at 274–91; Campbell, supra note 76, at 107.
86Amy R. Mashburn, Professionalism As Class Ideology: Civility Codes and Bar Hierarchy, 28 Val. U. L. Rev. 657, 694 (1994).
87In re Anonymous Member of the S.C. Bar, 709 S.E.2d 633 (S.C. 2011).
88Abigail Tracy, “Watch Your Back, Bitch”: President’s Lawyer Unloads on Stranger in Unhinged E-mails, Vanity Fair, July 13, 2017.
89The redacted e-mails are reproduced at Justin Elliott, Trump Lawyer Marc Kasowitz Threatens Stranger in Emails: “Watch Your Back, Bitch,” ProPublica (July 13, 2017), https://www.propublica.org/article/marc-kasowitz-trump-lawyer-threat-emails-maddow.
90Sharon LaFraniere, Trump Lawyer Marc Kasowitz Will Apologize After Sending Email Threats, N.Y. Times, July 13, 2017.
91Martha Neil, Lawyer Charged with Felony Intimidation over Facebook Message to Client’s Ex-Husband, ABA J. Daily News, May 23, 2014.
92In re McCool, 172 So. 3d 1058 (La. 2015). During the litigation, Ms. McCool ran against one of the judges in an election, promising in a YouTube video ad that she would “re-introduce the rule of law to the family court system.” Nanine McCool for Judge (video), YouTube (Oct. 8, 2013), at 0:28, https://www.youtube.com/watch?v=qhHSCwnlNcw.
93McCool, 172 So. 3d at 1078.
94 Id.
95Id. at 1084 (Weimer, J., concurring in part).
96See John G. Browning, Facing Up to Facebook—Ethical Issues With Lawyers’ Use of Social Media, Bloomberg Law (Aug. 5, 2014), https://news.bloomberglaw.com/us-law-week/facing-up-to-facebookethical-issues-with-lawyers-use-of-social-media.
97Claypole v. Cty. of Monterey, 2016 WL 145557, at *4 (N.D. Cal. 2016).
98Vt. Rules of Prof’l Conduct R. 8.4(g).
99Karen Kidd, Miami Attorney Voluntarily Disbarred Following “Uncivil and Unprofessional” Behavior, Fla. Record, Nov. 8, 2019.
100The description of Sullivan’s conduct is drawn from Snigdha Prakash, All the Justice Money Can Buy: Corporate Greed on Trial 91–92, 99, 108–09, 217–18, 234 (2011).
101Id. at 101.
102Diane P. Sullivan, Weil Partner, http://www.weil.com/people/diane-sullivan (last visited Aug. 24, 2019).
103Christopher J. Whelan & Neta Ziv, Privatizing Professionalism: Client Control of Lawyer’s Ethics, 80 Fordham L. Rev. 2577 (2012).
104Id. at 2601–02.
105This Problem is modeled on material from Grenardo, supra note 75, at 274–76.
106Frankel, supra note 55, at 16–17.
107Daniel J. Kornstein, A Tragic Fire—A Great Cross-Exam, N.Y. Law J., Mar. 28, 1986, at 2; Ann Ruben & Emily Ruben, Letter to the Editor, reprinted in Regulation of Lawyers: Problems of Law and Ethics 492–96 (Stephen Gillers & Norman Dorsen eds., 2d ed. 1989).
108Charles Silver, Preliminary Thoughts on the Economics of Witness Preparation, 30 Tex. Tech. L. Rev. 1383, 1383 (1999).
109See also Rule 1.2(d) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”); Rule 3.3(a)(3) (cautioning that a lawyer should not knowingly “offer evidence that the lawyer knows to be false”).
110Monroe Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469, 1479 (1966). Freedman subsequently changed his view and came to regard the practice as improper. Monroe H. Freedman, Lawyers’ Ethics in an Adversary System 59–77 (1975).
111Anthony Amsterdam, “Lectures on Trial Practice,” Stanford Law School, 1981.
112Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, Pre-Trial Chamber I, ¶ 37 (Nov. 8, 2006). Interestingly, among these are several common law jurisdictions; indeed, the Code of Conduct of the Bar Council of England and Wales does not permit barristers to “rehearse, practice, or coach a witness in relation to his evidence” (§ 705), although it does permit them to discuss evidence with witnesses.
Dilemmas of Advocacy: The Criminal Law Paradigm
Among the most familiar roles lawyers play is that of courtroom advocate. This role raises longstanding and sometimes dramatic ethical quandaries. How zealous should lawyers be on behalf of abhorrent causes or clients? What should they do if a client commits perjury? How far can they go to discredit honest, but hostile, witnesses? Should their goal be victory or justice? Such issues can arise in any litigation, civil or criminal. But in the public imagination, criminal cases are the most central and the most controversial.
This chapter explores the above issues. As it does, it pursues two goals: understanding the specific role lawyers play in the criminal justice system, and examining dilemmas of advocacy more generally, including those that are cross-cutting and therefore also arise in non-criminal contexts. It does this in three Parts. Part A explores defense attorney ethics. Part B explores prosecutorial ethics. Then, Part C analyzes ethical issues common to both defense attorneys and prosecutors.
The general public is often ambivalent about the role of criminal defense counsel. As a matter of abstract principle, most people agree that those accused of a crime should be presumed innocent until proven guilty and should have the right to legal assistance. But when the presumption becomes concrete, opinion often shifts. Lawyers’ role in freeing guilty, sometimes dangerous, offenders often provokes considerable outrage. At the same time, however, lawyers’ assistance in protecting those who are unjustly accused accounts for some of the most heroic and widely acclaimed moments in the bar’s history. Criminal cases thus require attorneys to withstand competing pressures and to serve multiple interests. These cases have traditionally served as the paradigm of the advocate’s role because crucial values are at stake on both sides. Interests of life, liberty, and reputation are at issue, not only for defendants, but also for victims, potential victims, and other individuals who might be charged with criminal offenses.
3861.Special Justifications for Zealous Advocacy in the Criminal Defense Setting
Whether guilty defendants are entitled to zealous advocacy has long been disputed. Back in 1836, in the first American treatise on legal ethics, David Hoffman intoned:
When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal, or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavours to arrest, or to impede the course of justice, by special resorts to ingenuity—to the artifices of eloquence—to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts. . . . Persons of atrocious character, who have violated the law of God and man, are entitled to no such special exertions from any member of our pure and honourable profession; and indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law: all that goes beyond that, either in manner or substance, is unprofessional, and proceeds, either from a mistaken view of the relation of client and counsel, or from some unworthy and selfish motive, which sets a higher value on professional display and success, than on truth and justice, and the substantial interests of the community. 1
A century later, Supreme Court Justice Byron White defined the obligation of defense counsel very differently:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. . . . [Unlike prosecuting attorneys,] defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but . . . we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in 387 the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly, there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. 2
A persistent and vital question that confronts criminal defense lawyers is: How can you defend the guilty ? 3 Answers to that question vary. John B. Mitchell, who represented over 600 criminal defendants during the course of his lengthy career, gives one answer: Through defending the guilty, the lawyer can test and ultimately fortify the various constitutional “screens” that protect the innocent. By “screens,” Mitchell refers to the fact that a stop on the street by a police officer cannot be undertaken except with “reasonable suspicion,” an arrest demands “probable cause,” the decision to file charges is made by an independent prosecutor, guilt must be proven “beyond a reasonable doubt,” and the defendant is entitled to a fair appeal. 4 “[A]t any screen,” Mitchell points out, “the individual may be taken out of the criminal process and returned to the society with as little disruption of his or her life as possible.” These screens, Mitchell insists, are crucial: “[E]ach of these screens functions to protect the values of human dignity and autonomy while enforcing our criminal laws.” 5 But the screens are fragile and not self-enforcing. Without oversight—without a defense lawyer seeking (or obtaining) an acquittal because a screen was bypassed because, for instance, the defendant’s arrest failed to conform to constitutional requirements—the screens will become less protective, ultimately imperiling the innocent. Thus, Mitchell says: “In providing a defense for the guilty . . . the defense attorney also has an effect on the criminal justice system.” 6
Mitchell also identifies an educational role:
The defense attorney plays a far broader role than serving as an advocate for a particular criminal defendant; the attorney is also 388the advocate of the ideals and values of our society and legal system. Central to this article is my genuine belief in these fundamental values: It is better that “10 guilty men be freed than a single innocent man be convicted,” and it is perhaps better that “100 guilty men be freed” than to permit the type of intentional government misconduct which appears to permeate our current system. . . . Prosecutors and police are educated about fair and thorough investigation, preparation, and presentation of a case so that the screens will work. Jurors are taught the meaning and importance of their role as well as concepts ranging from abstract principles like “burden of proof” and “beyond a reasonable doubt” to practical wisdom such as the vagaries of eyewitness identifications. The innocent defendant is taught that he can get a fair trial and the guilty are shown that perhaps life can be fairer, and people more just, than he believed.7
Another classic response is that the “guilty” may not be guilty after all. As Professor Barbara Babcock notes:
Facts are indeterminate, contingent, and in criminal cases, often evanescent. A finding of guilt is not necessarily the truth, but a legal conclusion arrived at after the role of the defense lawyer has been fully played. . . . [T]here is [often] a difference between legal and moral guilt. 8
Many also observe that even the guilty deserve representation, as a contrary rule would mean that guilt would be determined, not in open court, but the privacy of one lawyer’s office. As Lord Erskine observed in the trial of Thomas Paine for publishing The Rights of Man (1792): “If the advocate refuses to defend from what he may think of the charge or the defense, [the lawyer] assumes the character of the judge . . . before the hour of judgment.” 9
Others point to the dire conditions of confinement in most of the nation’s prisons, the severe penalties for many offenses, and the disabling consequences of a criminal record. As Mitchell observes:
A lengthy exposition on the nightmarish conditions in our jails and prisons would cover little new ground. Literature and reports documenting the horrors are extensive. These horrors are not isolated to some crazed southern jail or labor camp, or to a 20th century Bastille in upstate New York called Attica—they exist even in our most affluent state, California. I have seen many of California’s prisons and jails and witnessed the ravages of boredom and the constant fear of violent assault. Over the past 7 years, I have seen inmates who were assaulted and 389tormented by guards, and others who were beaten by members of prison gangs. I have listened to a terrified young man who, sentenced to 45 days in county jail for vehicular manslaughter, sat awake his first night to the sounds of the inmate in the cell to the left of him being sexually assaulted and the old man in the cage to his right having his head slammed against the floor by some younger ones; while the guards just ignored both and busied themselves with paperwork and cups of coffee. I have seen the anger and bitterness build in some, and I have seen the total mental degeneration of others. Worst of all, I have seen the inhuman degradation of their spirit.
I will not dwell on this. Those guilty of serious crimes merit the wrath of our society. But almost no one deserves the hell holes that we call jails and prisons. There is almost no case I would not defend if that meant keeping a human being, as condemnable as he or she may be, from suffering the total, brutal inhumanity of our jails and prisons. 10
1.There remains a sizable gap between public and professional views about defending the guilty. One ABA survey found that over two-thirds of the public believes that “lawyers spend too much time finding technicalities to get criminals released.” 11 What accounts for that perception? Should it be a source of concern?
2.Are there clients you would not defend, even if no other lawyer were willing to accept the case? In a survey conducted shortly after the 9/11 attack on the World Trade Center, a majority of respondent attorneys indicated that they would not defend accused terrorists. 12 Would you? Why or why not?
3.Those who do defend individuals accused of heinous crimes explain their actions in various ways. Some see it as a means of achieving social justice. Others see it as a way to stand up to, and restrict, government power. Others may have felt disregarded in their own lives, or they identify with underdogs. Professor Alan Dershowitz sees it slightly differently: “You are the surgeon in the operating room whose only goal is to save the patient, whether that patient is a good person or a bad person, a saint or a criminal.” 13 Meanwhile, Bronx Public Defender David Feige describes the defender’s mindset in this way:
It’s as simple as this: I care about the person I know. In most cases, the complainant is an abstraction to me. His victimization is an abstraction. My client, on the other hand is very human and very real. It is his tears I see, his hand I hold and his mother I 390 console. . . . I empathize with my clients the way everyone else in the system empathizes with the complainants. And ultimately, I do to the complainants what the rest of the system does to my clients. I dehumanize them. I learn their facts and statistics from police reports, but I don’t linger over their faces . . . . “UC #4225 [threatened] with a screwdriver.” That’s the victim. Somewhere behind that language is the person that prosecutors and cops and judges and politicians and friends and family all rally round . . . .
So defending the reviled, even those who are guilty, is not some mental trick, nor even a moral struggle for me. I don’t lack imagination or willfully close my eyes to another’s suffering. Rather, the reality of my clients—their suffering, their fear—is more vivid to me than that of the victims. My clients are the ones left exposed. They are the ones who are hated. They are the ones who desperately need my protection. Everyone else can look out for the victims. 14
Other accounts of criminal defense lawyers reflect similar strategies of selective empathy—often colored by the view (in the words of another defense lawyer) that: “Almost always, the people we represent are broken . . . . They almost never have the same kinds of benefits that many of us had. To expect them to behave the way people who have all these privileges have is not realistic.” 15 At the same time, other defenders break with Feige in that they insist they are capable of caring deeply about both their client and their client’s victim or victims. “It’s born out of the same empathy.” Both individuals, in some defenders’ eyes, “have at least one thing in common: They’ve been shaped by forces outside of their control.” 16
Finally, of his defense of the guilty, Harvard Professor Charles J. Ogletree, Jr. says the following:
As I reflect upon my experiences as a public defender, I realize that empathy alone did not sustain me. I also felt various motivations that centered around how I envisioned myself and my task. I describe these motivations under the rubric of “heroism.” I saw myself as a kind of “hero” of the oppressed, the one who fights against all odds, a sort of Robin Hood figure who can conquer what others cannot and who does not always have to conform to the moral rules society reserves for others. One element of this “hero” mentality, of course, is the thrill of winning. Certainly, many public defenders are driven in part by a desire to win; at [the District of Columbia Public Defender Service], for example, lawyers with excellent track records of acquittals were regarded with awe. For the public defender, there is glory in the “David versus Goliath” challenge of fighting the state, and the battle of wits that 391 characterizes the courtroom drama only adds to the thrill of the trial. Even the phrase we commonly used to describe a successful defense—“stealing” the case from the prosecution—invoked the image of Robin Hood stealing from the rich and powerful to give to the helpless and weak. Indeed, some people become criminal defenders because they love the challenge, are competitive by nature, and have unusual personal curiosity. They like the idea of representing the underdog, where the scales are tipped against them, the prosecutor has all the resources, and they have virtually none. 17
What do you make of the above accounts? Are you persuaded by Mitchell’s notion of screens to protect the innocent? By Dershowitz’s analogy to surgeons in an operating room? Do you find Feige’s account reassuring or problematic? Even of his hero analogy, Ogletree cautions:
Empathy and heroism also may prove counterproductive when taken to the extreme. They may cause the public defender to lose sight of the external moral limitations on her conduct. Empathic feelings, for example, can result in over-identification with the client. Without the benefit of critical distance, a defender may be tempted to overstep ethical boundaries in her zeal to help her client. The same result can occur when a lawyer becomes overly enamored of the “heroic” role—the hero of the oppressed, after all, does not have to play by society’s rules. For example, an overly empathetic or heroic attorney may be inclined to present a perjurious witness if this course of action is likely to win the case. 18
4. Many believe that, not only do those accused of criminal conduct deserve a defense, they deserve a defense that’s particularly zealous.19 As Alan Dershowitz has put it: “What a defense attorney ‘may’ do, he must do, if it is necessary to defend his client. A zealous defense attorney has a professional obligation to take every legal and ethically permissible step that will serve the client’s best interest—even if the attorney finds the step personally distasteful.”20 Or, in Professor H. Richard Uviller’s words: “In all but the rare case of an innocent client, the defendant’s lawyer must strive to make the true appear false and the false appear true.”21 Is that how you would describe the defense attorney’s role? Is that what you would do if you were assigned to represent a defendant whom you believed to be guilty of a serious and dangerous crime?
3925.Of the criminal defense lawyer’s duty of loyalty, prominent defense lawyer and Georgetown Law Professor Abbe Smith has written: “It is difficult, if not impossible, to zealously represent the criminally accused and simultaneously tend to the feelings of others.”22 She has further, and more controversially, explained:
There is nothing unethical about using racial, gender, ethnic, or sexual stereotypes in criminal defense. It is simply an aspect of zealous advocacy. Prejudice exists in the community and in the courthouse, and criminal defense lawyers would be foolhardy not to recognize this as a fact of life. . . . A trial is theater. Defense lawyers cannot afford to be color-blind, gender-blind, or even slightly near-sighted when it comes to race, gender, sexual orientation, and ethnicity . . . .23
Accordingly, while Smith says she does not “enjoy stirring up or manipulating homophobia or race, gender, or ethnic prejudice in the course of representing a client,” she is willing to do so, if she believes that such a strategy will work to the client’s benefit.24
Similarly, Timothy Beneke writes:
I try to win my cases. If I could get my client off by appealing to the jury’s sexism I probably would, because I’d be more concerned with this one guy and his freedom than the ethical issue of sexism. If I didn’t appeal to their sexism and I thought I could’ve to get my client off, and he went to prison, I probably would feel pretty bad about it. In the heat of the battle I probably pull out a lot of stops and I may have appealed to the jury’s sexism without even realizing it.25
Would you be willing to take steps like those proposed by Smith and Beneke in order to protect your clients’ interests? Are such strategies ethical under the Model Rules of Professional Conduct? Should they be? What about Model Rule 8.4(g), which prohibits conduct that amounts to harassment or discrimination on the basis of certain characteristics like race and gender?
6.Lisa Bloom, a lawyer who, like her mother Gloria Allred, specializes in representing women in sexual abuse and harassment cases, represented former Hollywood mogul Harvey Weinstein when he was accused of such conduct. In a confidential December 2016 memo, Bloom offered her services to Weinstein to help him smear actress Rose McGowan, one of his early accusers, by painting her as a “pathological liar.” One of Bloom’s suggested tactics for undermining McGowan: “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”26 Bloom further boasted to Weinstein that she was 393“equipped to help you against the Roses of the world, because I have represented so many of them” and that such complainants “start out as impressive, bold women, but the more one presses for evidence, the weaknesses and lies are revealed.” Even after the New York Times published an explosive article detailing Weinstein’s long history of sexual abuse, Bloom sent an email to the board of directors of Weinstein’s film company denouncing the coverage as “largely false and defamatory,” a “major violation of journalist ethics,” and an account that would quickly be discredited.27 In September 2019, McGowan tweeted: “The evil that was perpetrated on me and others was mind bending and illegal. Lisa Bloom should be disbarred.”28 Do you agree?
7.Harvard Law Professor Alan Dershowitz was one of the lawyers who helped the serial sexual abuser and supposed billionaire Jeffrey Epstein negotiate a favorable plea deal in 2008. At the time the sweetheart deal was struck, Epstein was facing a fifty-three-page criminal indictment and could have ended up in federal prison for the rest of his life for “assembling a large cult-like network of underage girls” coerced “into having sex acts behind the walls of his opulent waterfront mansion as often as three times a day.”29 But, as a result of the deal, the FBI’s probe into Epstein’s misconduct was shuttered, Epstein and his accomplices were given broad immunity, and Epstein was required to serve a mere thirteen months in a county jail (though he was allowed to leave the facility during the day).30 In 2019, after the full extent of Epstein’s predatory behavior surfaced and after he committed suicide while awaiting trial on new charges, Dershowitz was asked if he had any regrets about his role in the 2008 plea deal. He replied:
That’s what I do and I would do it again, and my job when I take a case is to try to get the best possible result I can. It’s the job of the prosecutor and the judge to make sure that the appropriate sentence is accorded. My job is to get the best possible sentence and the best possible result I can consistent with legal ethics. That’s what I’ve done all of my life. That’s what I will continue to do for the rest of my life. . . . I taught my students for 50 years at Harvard Law School you should always feel bad about producing results like this but it’s your job. The job is to do what you can to help your client and then to feel bad about it. That’s part of what you do as a criminal defense lawyer and if you can’t do that you should be in the job of prosecuting not defending. But you cannot for one second think about compromising the rights of your client.31
Do you agree?
3942.Structural Challenges to Zealous Advocacy in the Criminal Defense Setting
The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” Beginning half-a-century ago, in a series of cases that started with Gideon v. Wainwright , 372 U.S. 335 (1963) , the Supreme Court interpreted this language to hold that an indigent criminal defendant may not be imprisoned, even for a misdemeanor, unless afforded the right to a lawyer’s “effective assistance.” 32 Yet, this Section shows that in reality, meeting this benchmark can be difficult.
Though most lawyers believe that even the patently guilty deserve competent representation, many features of the contemporary criminal justice system seem to conspire to put such representation out of reach. These include: inadequate resources and deficient counsel; criminal defendants’ jaded view of public defenders and court-appointed counsel; and some defense lawyers’ occasional animus or indifference toward their clients. Each is discussed below.
Inadequate Resources and Deficient Counsel
The largest structural challenge to zealous advocacy in the criminal justice setting is inadequate resources—and these paltry resources, too often, contribute to a system of seriously deficient counsel. Reflecting this dynamic, one large survey of indigent criminal cases found that 99 percent included no motion for expenses for experts or investigation. 33 Another study of cases in which innocent defendants were ultimately exonerated by DNA evidence found that trial attorneys were demonstrably ineffective a full quarter of the time. 34
Today, approximately 80 percent of criminal defendants are poor enough to qualify for court-appointed counsel—and, although systems for indigent defense take several forms, they generally share one defining feature: They are grossly underfunded. Of the $200 billion that America spends annually on criminal justice activities, only 2 percent goes to indigent defense. 35
Most publicly-funded defense counsel work in one of two ways. Both pose challenges. The first approach is for courts to appoint counsel (who typically have their own private practices) on a case-by-case basis. For this defense work, these appointed lawyers typically receive minimal flat fees or hourly rates, often coupled with a ceiling on total compensation. In some jurisdictions, low ceilings apply even for defendants facing the 395 death penalty, and attorneys subject to such compensation caps have ended up with hourly rates below $100. For these court-appointed lawyers, “thorough preparation is a quick route to financial ruin.” 36 Or, as a federal oversight commission candidly put it, due to limited financial resources, most lawyers who take criminal defense cases face an “inherent conflict between remaining financially solvent and providing vigorous advocacy.” 37
Compounding the difficulty, when judges appoint counsel, that counsel (looking for future appointments) may be beholden to the judge, rather than the client. As a consequence, appointed counsel might share the judge’s interest in “resolving cases quickly,” “keep[ing] the docket moving” and not “rock[ing] the boat.” 38 Indeed, some lawyers are reportedly appointed specifically because “they fail to do any vetting of a prosecution’s case before convincing their clients to accept a plea.” 39 On the other side of the same coin, some lawyers who provide vigorous advocacy for clients in such systems may be stigmatized, admonished, humiliated, and punished for “overworking.” 40 Moreover, many American judges are elected. A judge facing re-election may (consciously or otherwise) favor the lawyer, regardless of ability, who contributes most liberally to the judge’s campaign coffers. 41
Analogous problems can arise under the second—and most common—system for indigent defense, which relies on public defenders. Public defenders are lawyers for whom defending indigent clients is a full-time job; some are government employees, while others work for private contractors who are hired by the government. 42 Where funding is adequate, the quality of representation in these offices is generally quite 396 high. But many operate with “outlandish” caseloads and egregiously inadequate resources. 43
Most experts believe that a full-time defense lawyer, practicing with adequate support staff, should not handle more than 150 felony cases or 400 misdemeanor cases per year. 44 Even those benchmarks are controversial and seem unrealistic to some: Assuming that the lawyer takes two weeks of vacation per year, handling 150 felony cases a year entails handling a new felony case every 1.6 days—which leaves precious little time for pretrial preparation, fact investigation, or motions practice. 45 Still, many public defender offices far exceed that 150/400 limit.
According to the New York Times :
In Colorado, Missouri and Rhode Island, . . . the typical public defender had two to three times the workload they should in order to provide an adequate defense. In Louisiana, defenders have almost five times the workload they should. In Texas, . . . the defense spent an average of about two hours investigating the accounts of police officers and witnesses and other evidence in serious felony cases—a quarter of what [experts believe is necessary].46
In Miami, public defenders handle caseloads of 500 felony cases or 2,200 misdemeanors annually—and the public defender office’s budget was recently reduced. 47 Or, in Missouri, the State Public Defender has reported that the numbers are such that defense lawyers must “dispose of a case every 6.6 hours of every working day.” He elaborated: “The present M.A.S.H. style operating procedures require public defenders to divvy effective legal assistance to a narrowing group of clients,” meaning that public defenders must “choose among clients who will receive effective legal assistance.” 48
The roughly 20 percent of defendants who hire their own counsel do not necessarily fare better. Most of these defendants are just over the line of indigence and cannot afford substantial legal expenses. Their lawyers typically charge a flat fee, payable in advance. This practice creates obvious incentives to cut corners on factual investigation and to negotiate quick plea bargains. Only defendants who can pay steep fees, usually in 397 white-collar or organized crime cases, have ready access to the highly skilled advocacy that the public sees in publicized trials. 49
Little Faith in Public Defenders and Court-Appointed Counsel
Exacerbating the problems above, it appears that indigent criminal defendants often lack confidence in the defense lawyers appointed to represent their interests. Roy Fleming summarizes these concerns:
[C]lients distrust their public defenders and court-appointed attorneys and hold them in low esteem. Jonathan Casper neatly captured their views and caught the tone of subsequent studies with the title of his seminal article, “Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender.” A rather substantial body of research agrees that, in contrast with their attitudes toward privately retained attorneys, criminal defendants see publicly paid and assigned counsel as part of the “system”—overly eager to plead them guilty, disinclined to give them much time, and little concerned about their welfare. . . .
In the eyes of criminal clients, professional accountability hinges on a market conception and fee-for-service definition of lawyer responsibility. They place little faith in the notion that ethical concerns and feelings of professional obligation by themselves are sufficient guarantees that a lawyer picked seemingly “out of the hat” will adequately represent their interests. 50
Lisa J. McIntyre conducted interviews with former public defenders and similarly reports: “Two-thirds of the former public defenders agreed with the statement, ‘My clients often seemed to doubt my ability as a lawyer just because I was a public defender.’ ” 51
1. As a consequence of these overlapping structural and human factors, the deck in criminal cases seems to be stacked against the (particularly indigent) criminal defendant. Guilty pleas are endemic; they resolve some 97 percent of cases that result in convictions. 52 And, though a non-trivial number of cases are dropped before trial, when cases do go to trial, outright acquittals are rare. 53 Poverty increases the possibility of injustice. Does the 398 United States have a system where, as critics have observed, it is better to be rich and guilty, than innocent and poor? If, so, what follows from that fact?
2.Given some criminal defendants’ lack of faith in public defenders and court-appointed counsel, some ask whether indigent defense systems might be redesigned to allow criminal defendants to select their own attorneys. The idea is that attorney fees and costs would still be paid from state coffers, but defendants could, if they wished, select an attorney from among those who volunteered to represent indigent criminal clients. This possibility has long been considered, but it is now becoming a reality. In 2015, Comal County, Texas, rolled out a pilot program, dubbed “client choice.” Under it, defendants may use government money to select their lawyers, in much the same way that parents in some parts of the country use government vouchers to pay for their child’s education. 54 Supporters of the program say that it solves two structural problems that generally plague indigent criminal defense. First, lawyers are too often “beholden to judges for appointments,” thus compromising their loyalty. Second, in the traditional system, clients have no meaningful control over attorney selection and—echoing the discussion above—it’s “hard to trust a lawyer you have not chosen and generally cannot fire.” 55 On the other hand, some take a dim view of the idea, saying that certain unsophisticated defendants will choose poorly, and that the new system will lead to “gamesmanship and administrative chaos.” 56
3.While Texas is experimenting with “client choice,” in Washington state, a judge recently took a different tack to improve defendants’ legal representation. Drawing on past institutional reform cases involving school desegregation and prison overcrowding, U.S. District Court Judge Robert S. Lasnik appointed a supervisor to oversee the public defense services in the cities of Mount Vernon and Burlington, Washington. 57 In ordering this unprecedented remedy, Judge Lasnik found that the cities of Mount Vernon and Burlington had effectively instituted a constitutionally deficient “meet and plead” system in which lawyers handling 500 cases at a time would “often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.” In this context, “discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public.” 58 “The system is broken to such an extent,” he concluded, “that confidential attorney-client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.” 59
399Though many applauded Judge Lasnik’s bold move, others questioned its efficacy. Houston criminal defense lawyer Mark Bennett, for example, dismissed the idea, saying:
The top-down approach is doomed to fail. For everything Judge Lasnik can dream up to force criminal-defense lawyers to do for their indigent clients, there are a hundred other ways the lawyers can do poor jobs. It’s criminal-defense policy Whac-A-Mole. 60
Do you agree? Of the two approaches to improve criminal defense services, does Comal County, Texas or Burlington, Washington seem to be on a better track?
4. When considering reforms, some believe that State Supreme Courts also ought to do more to assist. Here, Florida supplies an interesting example. In the 1990s, the Florida Supreme Court confronted a case challenging the backlog of appeals by indigent defendants in which briefs were overdue. In evaluating how to address these delinquent filings, the court first pointed out the “woefully inadequate funding of the public defenders’ offices” and observed that the problem “affects both trial and appellate caseload.” 61 The court then noted that, although the legislature’s failure to adequately fund the public defenders’ offices was “at the heart of this problem, and the legislature should live up to its responsibilities and appropriate an adequate amount for this purpose, it is not the function of this Court to decide what constitutes adequate funding and then order the legislature to appropriate such an amount.” 62 But, the court did not stop there, choosing, instead, to send a clear message to the Florida legislature:
[A]lthough this court may not be able to order the legislature to appropriate those funds, we must advise the legislature that if sufficient funds are not appropriated within sixty days from the filing of this opinion, and counsel hired and appearances filed within 120 days from the filing of this opinion, the courts of this state with appropriate jurisdiction will entertain motions for writs of habeas corpus from those indigent appellants whose appellate briefs are delinquent sixty days or more, and upon finding merit to those petitions, will order the immediate release pending appeal of indigent convicted felons who are otherwise bondable. 63
The strategy worked. Professor Stephen Hanlon explains:
The court and the legislature were eyeball to eyeball, and then the legislature blinked. In the aftermath of the court’s order, the Florida legislature significantly increased funding for the office of the public defender. The principle had been established. True the legislature was in charge of state appropriations, but under the court’s inherent power, the court was in charge of the state’s 400 criminal justice system. That criminal justice system had to be a systemically constitutional and ethical system.
That was the Florida Supreme Court’s special responsibility under the Florida Constitution. That’s how the separation of powers worked in Florida. And the Florida Supreme Court was not about to preside over and tolerate a systemically unconstitutional and unethical criminal justice system in that state. If the only thing the legislature could understand was the threat of the immediate release of thousands of indigent convicted felons onto the streets of the State of Florida, then so be it. 64
5.Though some believe that publicly-funded counsel supply less effective representation as compared to their privately-financed counterparts, evidence is mixed. Studies tend to show similar conviction rates. But, studies of convicted individuals also tend to find harsher consequences for those with publicly-financed counsel. One recent Bureau of Justice Statistics study found, for instance, that defendants with publicly-financed counsel were more likely to be sentenced to prison, while another recent study found that clients of public defenders received, on average, prison sentences that were three years longer than the sentences received by clients who were privately represented. 65 But, these disparities do not necessarily reflect inferior public defense. They could, instead, reflect the fact that “marginally indigent” defendants choose to tap resources of family and friends to hire private counsel when they believe they have a good chance of avoiding conviction. Because of this selection bias, public defenders may end up with a disproportionate share of matters in which evidence of guilt is overwhelming. 66 Further confusing matters, a survey of federal judges rated the competence of public defenders higher than court-appointed or privately-retained counsel. 67 What, if anything, follows from these findings?
While it is unclear whether public defenders offer better representation than private lawyers or vice versa, there is good evidence that court-appointed lawyers are less effective as compared to public defenders from independent systems. A 2012 study canvassing more than 3,000 Philadelphia murder cases found that clients fared better when they were represented by a lawyer from an independent public defender organization than if they had one appointed by a judge: Their conviction rate was 19 percent lower; the chance that they would serve a life sentence was reduced by 62 percent; and their expected sentence length was 24 percent shorter. 68 What follows from these glaring discrepancies?
4016.A recent study of the criminal justice system in Cook County, Illinois, found that clients of defense attorneys who engaged in zealous advocacy were sometimes sentenced to longer prison terms. 69 What might explain such a finding? And if that is the norm, what is an ethical lawyer to do?
7.In Griffin v. Illinois , 351 U.S. 12, 19 (1956) , Justice Black wrote: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Do you agree? Do the courts? Does the public? If Americans truly accepted that principle, could it be institutionalized? What obstacles stand in the way?
8.Comment 2 to Rule 1.3 states that a lawyer’s workload “must be controlled so that each matter can be handled competently,” and Formal Opinion 06–441 (2006) takes the position: “The Rules provide no exception for lawyers who represent indigent persons charged with crimes.” Accordingly, Formal Opinion 06–441 requires supervising attorneys to monitor workloads and take appropriate action if workloads become excessive. It more controversially admonishes:
If the problem of an excessive workload cannot be resolved through the nonacceptance of new clients or by other available measures, the lawyer should move to withdraw as counsel in existing cases to the extent necessary to bring the workload down to a manageable level, while at all times attempting to limit the prejudice to any client from whose case the lawyer has withdrawn.70
Does that seem like a sound solution? Suppose that you are a public defender with a bulging caseload. You suspect that, if you withdraw from representing a particular client, a lawyer who tends to provide even shoddier representation is apt to replace you. How should you proceed?
In keeping with that Formal Opinion’s advice, some attorneys have risked contempt charges rather than go to trial when overwhelming caseloads prevented adequate preparation. Does that civil disobedience seem justifiable? If you were an overloaded public defender asked to represent 300-plus clients simultaneously, what would you do?
9.In light of all the above, many believe that major reforms are urgently needed. Yet, many also acknowledge that any major reform effort is apt to encounter substantial resistance. Legal scholar and former federal judge Richard Posner puts a common view with uncommon candor:
I can confirm from my own experience as a judge that criminal defendants are generally poorly represented, but if we are to be hardheaded we must recognize that this may not be an entirely bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. 402A bare-bones system for defense of indigent criminal defendants may be optimal.71
Do you agree? Even if a bare-bones system for criminal defense is “optimal,” is it ethical?
3.Ineffective Assistance of Counsel
As noted above, whether publicly or privately funded, some defense lawyers provide seriously shoddy assistance. Trial records, even in capital cases, reveal examples of counsel who functioned more as spectators than advocates—who failed to conduct any investigation, introduce any evidence, cross-examine any witnesses, or even remain awake and sober while in court. 72 Whether or not their clients are guilty, this unprofessional conduct is cause for grave concern.
One obvious way to address the problem is to provide more rigorous federal judicial oversight through ineffective assistance of counsel claims, initiated after the defendant’s conviction. In the landmark case, Strickland v. Washington, 466 U.S. 668 (1984) , the Supreme Court set forth the relevant Sixth Amendment standard:
In a long line of cases that includes Powell v. Alabama , 287 U.S. 45 (1932) , Johnson v. Zerbst , 304 U.S. 458 (1938) , and Gideon v. Wainwright , 372 U.S. 335 (1963) , this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. . . .
Because of the vital importance of counsel’s assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.
For that reason, the Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” . . . The Court has not [previously] elaborated on the meaning of the constitutional requirement of effective assistance. . . . In giving 403 meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. . . .
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 684–87 . Later in the decision, the Court went on to caution that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id . at 690 .
Strickland thus created a route for defendants to obtain post-conviction relief because of counsel’s deficiency—but the route created was narrow and strewn with obstacles. Reflecting this, one systematic survey published in 1995 found that over 99 percent of ineffective assistance claims were unsuccessful. 73 Similarly, between 1984 and 2003, even while the Court continued to pay lip service to the potential availability of relief, courts declined to find inadequate representation even when the defendant’s lawyer was drunk, on drugs, or parking his car during key parts of the prosecution’s case. Meanwhile, certain unlucky defendants were executed despite their lawyers’ lack of any prior trial experience, ignorance of all relevant death penalty precedents, or failure to offer any witnesses, closing argument, or mitigating evidence. 74
The past two decades, however, have seen a few tentative steps to tighten constitutional requirements. In Wiggins v. Smith, 539 U.S. 510 (2003) , for example, the Court granted habeas relief to a death row defendant whose attorneys failed to conduct a reasonable investigation of mitigating circumstances, when even the most cursory review would have revealed facts about the defendant’s experience of abuse that could well have affected the jury’s sentencing deliberations. However, as in 404 Strickland , the Court emphasized the limits of its ruling. The majority made clear that defense counsel would not always be required to present mitigating evidence or even to perform a full investigation. As long as “reasonable professional judgments” supported an attorney’s limited inquiry or failure to raise mitigation claims, the constitutional standard of competence would be met.
The Court took a step further in Rompilla v. Beard , 545 U.S. 374 (2005) . There, the majority set aside a death sentence after finding that the defendants’ trial lawyers failed to examine a prior conviction file that they knew the prosecution intended to use as evidence of aggravation in the sentencing phase of the proceedings. Again, in Maples v. Thomas , 565 U.S. 266 (2012) , the Court set aside a capital conviction of a defendant who missed a filing deadline b ecause two Sullivan & Cromwell pro bono lawyers dropped the case when they changed employment without notifying the defendant or seeking permission f rom the trial court to withdraw. Writing for the majority, Justice Ginsburg emphasized that attorney negligence would not normally entitle the defendant to a new hearing but that on the facts of this case, the attorneys had, without notice, simply “abandon[ed] [their] client.” Id. at 281 .
Similarly, in Hinton v. Alabama , 571 U.S. 263 (2014) (per curiam), the Court granted relief to Anthony Ray Hinton. Back at the time of his trial, Hinton was facing a capital charge and was in need of a competent expert witness to refute the State’s ballistics evidence—but his court-appointed lawyer mistakenly thought that he was limited to spending $1,000. The only expert Hinton’s lawyer could find for that modest price was Andrew Payne, an elderly man with a degree in civil engineering who was unable to answer even elementary questions on cross-examination. Reflecting just how bad things got, the prosecutor ended the cross-examination wit h this colloquy:
Q:Mr. Payne, do you have some problem with your vision?
A:Why, yes.
Q:How many eyes do you have?
A:One.
In post-conviction proceedings, Hinton claimed that his lawyer’s error constituted ineffective assistance of counsel. To support the claim that he was prejudiced by counsel’s mistake, Hinton produced three highly-qualified experts who cast serious doubt on the state’s ballistics testimony—which was significant since, according to the Alabama Supreme Court, “the only evidence linking Hinton to the two murders were forensic comparisons of the bullets recovered from those crime scenes to the Hinton revolver.” Id . at 265 –66 . In a per curiam opinion, the Supreme Court agreed that the lawyer’s failure, which led to Payne’s retention, very possibly altered the outcome of the case.
405So, too, recent cases have extended certain (limited) protections to defendants making guilty pleas. In Padilla v. Kentucky , 559 U.S. 356 (2010) , the Court held that the defense attorney provided ineffective assistance of counsel in failing to advise a defendant that his guilty plea made him subject to automatic deportation. And, in a noteworthy pair of 2012 cases decided the same day, the Court held for the first time that the duty of effective assistance of counsel applies to plea bargains rejected because of counsel’s erroneous advice. Lafler v. Cooper , 566 U.S. 156 (2012) , Missouri v. Frye , 566 U.S. 134 (2012) . However, in order to show ineffective assistance here, the appellant must show that there is a reasonable likelihood that but-for counsel’s bad advice, both she and the court would have accepted the plea bargain.
Most recently, in Garza v. Idaho , 139 S. Ct. 738 (2019) , the Court weighed in on the prejudice prong of Strickland , where a defendant’s attorney simply refused to file a notice of appeal despite the defendant’s repeated requests. Lower courts had denied the habeas petition, reasoning that the defendant could not show that the appeal would have succeeded—and that, without such evidence, the prejudice prong of Strickland was not satisfied. Reversing, the Court ruled that “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal, with no need for a further showing.” 139 S. Ct. at 747 .
The impact of these decisions remains unclear, particularly since some cases have continued to take a narrow view of the ineffective assistance standard, hewing to the view articulated by the vice president of the Georgia Trial Lawyers Association: “You put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, that’s adequate counsel.” 75 But nonetheless, the trend is to signal less tolerance for grossly defective lawyering—an improvement over pre-2003 decisions, that, for example, applied a three-step analysis to determine how much dozing by trial counsel is constitutionally permissible: “(1) did counsel sleep for repeated and/or prolonged lapses; (2) was counsel actually unconscious; and (3) were the defendant’s interests at stake while counsel was asleep?” 76
4061.Does Strickland strike the right balance between adequacy and finality? Why or why not?
2.What is the relationship between Strickland and the client’s ability to sue for deficient performance? In most states, a former criminal defendant who sues for legal malpractice must prove not only that he would have won his criminal case had his lawyer performed reasonably under the circumstances, but also that he is actually innocent. Furthermore, in many jurisdictions, if a court rejects a claim of ineffective assistance of counsel on habeas review, the collateral estoppel doctrine bars a later malpractice determination. Thus, as two commentators put it: “Strickland does double duty: It is both very deferential on appeal and also insulates many lawyers from malpractice liability.”77
4.Criminal Defense Lawyers’ Duties to the Truth
We now shift gears. The preceding discussion considered the costs of insufficiently zealous representation. The discussion below focuses on potential problems—including client perjury, document destruction, heavy-handed witness preparation, and overly aggressive impeachment on cross-examination—associated with representation that is arguably too zealous. Recognize, these are chronic and cross-cutting dilemmas of litigation. Thus, although our focus is on criminal proceedings, where the stakes are often highest and the issues are the most sharply drawn, many of these dilemmas also arise in civil litigation.
To begin, note that Rule 3.1, which generally protects the integrity of tribunals, specifically gives criminal defense lawyers extra latitude. It provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
In other words, from the outset, the Rules recognize that a criminal defense lawyer is entitled to defend a client who she knows to be guilty—and make arguments she knows to be unsupported—in order to force the government to sustain its heavy burden of proof.
Perjury and the Defense Lawyer’s Disclosure Obligations
Although Rule 3.1 permits lawyers to seek the acquittal of even patently guilty clients, there are several limits on what defense attorneys 407 can do in pursuit of that objective. One limit involves the admission of false or perjured testimony.
Rule 3.3 supplies the relevant standard. Rule 3.3(a)(3) advises that a lawyer “shall not knowingly . . . offer evidence that the lawyer knows to be false.” Rule 3.3(a)(3) further admonishes: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” Then, under Rule 3.3(b) :
A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
Finally, Rule 3.3(c) clarifies:
The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 [the provision regulating client confidentiality].
No issue in legal ethics has attracted greater attention than the problem of perjury by criminal defendants. The issue is critical not because it arises frequently in practice. Indeed, many advocates insist that they rarely have actual knowledge that their client is lying, and those cases (like most criminal cases, generally) are apt to be resolved through plea bargains. Rather, the question is crucial because it establishes the boundaries of clients’ trust and lawyers’ competing obligations of truthfulness and confidentiality—and those issues, so central to the lawyers’ role, affect the attorney-client relationship in every case.
In Nix v. Whiteside, 475 U.S. 157 (1986) , the Supreme Court illuminated the issue by holding that a lawyer did not provide ineffective assistance of counsel by discouraging his client from giving what the lawyer believed would be false testimony.
Supreme Court of the
United States
475 U.S. 157 (1986)
.
[Editors’ Note: The case involved a defendant convicted of the second-degree murder of Calvin Love. The crime took place in Iowa when Whiteside and two companions visited Love’s apartment seeking marijuana. An argument over the ownership of a certain amount of marijuana broke out, and, in the midst of the argument, Love directed his girlfriend to get his “piece.” According to Whiteside’s testimony, Love then started to reach under his pillow and move toward Whiteside, whereupon Whiteside stabbed Love in the chest, inflicting a fatal wound. 408 After Whiteside was charged with murder, he gave a statement to Gary Robinson, his court-appointed attorney. In that statement, Whiteside indicated that he had stabbed Love as the latter “was pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was nevertheless convinced that Love had a gun. A police search revealed no weapon, and none of Whiteside’s companions reported seeing a gun. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense; Whiteside only had to show a reasonable belief that Love had a gun nearby.]
n Mr. Chief Justice Burger.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something “metallic” in Love’s hand. When asked about this, Whiteside responded: “[I]n Howard Cook’s case there was a gun. If I don’t say I saw a gun, I’m dead.”
Robinson told Whiteside that such testimony would be perjury and repeated that it was not necessary to prove that a gun was available but only that Whiteside reasonably believed that he was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic” Robinson told him, according to Robinson’s testimony:
[W]e could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; . . . I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.
Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. 2
Whiteside testified in his own defense at trial and stated that he “knew” that Love had a gun and that he believed Love was reaching for a gun and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not actually seen a gun in Love’s hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim’s family had removed everything from the 409 apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside’s asserted fear that Love had a gun.
The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of effective assistance of counsel. The Supreme Court of Iowa affirmed respondent’s conviction. That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury. . . . The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled.” . . .
[Editors’ Note: Whiteside then petitioned for a writ of habeas corpus, claiming that he had been denied effective assistance of counsel. The district court denied the writ, and the Court of Appeals for the Eighth Circuit reversed. In the appellate panel’s view, Robinson’s warning to Whiteside that he would inform the court of the perjury constituted a threat to violate the attorney’s obligation to preserve client confidences.
The U.S. Supreme Court unanimously disagreed. Justice Burger’s majority opinion noted that the right of an accused to testify on his own behalf is of relatively recent origin. Until the end of the nineteenth century, criminal defendants were disqualified as witnesses on grounds of bias; under current due process standards, the right to testify is generally assumed. However, in the Court’s view, that right does not extend to false testimony. Nix was decided three years after the ABA adopted the Model Rules, at a time when many states still used rules based on the previous Model Code of Professional Responsibility. The Court therefore discusses both sets of standards. According to Justice Burger’s opinion:]
Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct also adopt the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4–101(C)(3) (intention of client to commit a crime); Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Model Code and the Model Rules do not merely authorize disclosure by counsel of client perjury; they require such disclosure. See Rule 3.3(a)(4); DR 7–102(B)(1). . . .
These standards confirm that the legal profession has accepted that an attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.
410The commentary [to Model Rule 3.3] . . . also suggests that an attorney’s revelation of his client’s perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony. Similarly, the Model Rules and the commentary, as well as the Code of Professional Responsibility adopted in Iowa, expressly permit withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. Model Rules of Professional Conduct, Rule 1.16(a)(1), Rule 1.6, Comment (1983); Code of Professional Responsibility, DR 2–110(B), (C) (1980). Withdrawal of counsel when this situation arises at trial gives rise to many difficult questions including possible mistrial and claims of double jeopardy. . . . Whether Robinson’s conduct is seen as a successful attempt to dissuade his client from committing the crime of perjury, or whether seen as a “threat” to withdraw from representation and disclose the illegal scheme, Robinson’s representation of Whiteside falls well within accepted standards of professional conduct and the range of reasonable professional conduct acceptable under Strickland . . . .
The Court of Appeals’ holding that Robinson’s “action deprived Whiteside of due process and effective assistance of counsel” is not supported by the record since Robinson’s action, at most, deprived Whiteside of his contemplated perjury. Nothing counsel did in any way undermined Whiteside’s claim that he believed the victim was reaching for a gun. Similarly, the record gives no support for holding that Robinson’s action “also impermissibly compromised Whiteside’s right to testify in his own defense by conditioning continued representation . . . and confidentiality upon Whiteside’s restricted testimony.” The record in fact shows the contrary: (a) that Whiteside did testify, and (b) he was “restricted” or restrained only from testifying falsely and was aided by Robinson in developing the basis for the fear that Love was reaching for a gun. Robinson divulged no client communications until he was compelled to do so in response to Whiteside’s post-trial challenge to the quality of his performance. We see this as a case in which the attorney successfully dissuaded the client from committing the crime of perjury. . . .
On this record, the accused enjoyed continued representation within the bounds of reasonable professional conduct and did in fact exercise his right to testify; at most he was denied the right to have the assistance of counsel in the presentation of false testimony. Similarly, we can discern no breach of professional duty in Robinson’s admonition to respondent that he would disclose respondent’s perjury to the court. The crime of perjury in this setting is indistinguishable in substance from the crime of threatening or tampering with a witness or a juror. A defendant who informed his counsel that he was arranging to bribe or threaten witnesses or members of the jury would have no “right” to insist on counsel’s assistance or silence. Counsel would not be limited to advising against that conduct. An attorney’s duty of confidentiality, which totally 411 covers the client’s admission of guilt, does not extend to a client’s announced plans to engage in future criminal conduct. . . .
In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.
———
Justice Brennan concurred separately, emphasizing that the Court has no constitutional or statutory authority to establish rules of ethics for lawyers practicing in state courts. In his words:
[T]he Court . . . cannot tell the States or the lawyers in the States how to behave in their courts, unless and until federal rights are violated.
Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct. But let there be no mistake: the Court’s essay regarding what constitutes the correct response to a criminal client’s suggestion that he will perjure himself is pure discourse without force of law. As Justice Blackmun observes, that issue is a thorny one . . . but it is not an issue presented by this case. Lawyers, judges, bar associations, students, and others should understand that the problem has not now been “decided.”
Justice Blackmun also penned a concurrence joined by Justices Brennan, Marshall, and Stevens that emphasized that the only issue before the Court was whether Whiteside’s Sixth Amendment right to a fair trial had been violated. In their view, it had not. The only effect that Robinson’s threat had on the trial was that Whiteside did not testify falsely. And, “[t]o the extent that Whiteside’s claim rests on the assertion that he would have been acquitted had he been able to testify falsely, he claims a right that the law does not recognize.” Id. at 186. The Justices also reasoned:
[T]he lawyer’s interest in not presenting perjured testimony was entirely consistent with Whiteside’s best interest. If Whiteside had lied on the stand, he would have risked a future perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the jury might have concluded that Whiteside lied as well about his lack of premeditation and thus might have convicted him of first-degree murder. And if the judge believed that Whiteside had lied, he could have taken Whiteside’s perjury into account 412in setting the sentence. [ ] In the face of these dangers, an attorney could reasonably conclude that dissuading his client from committing perjury was in the client’s best interest and comported with standards of professional responsibility.
Id. at 188. Accordingly, Whiteside could not claim prejudice from his counsel’s decision.
———
Nix v. Whiteside raises two key questions. First: What standard of knowledge is required before the lawyer concludes that a defendant’s testimony is (or would be) false? Second: What should the defendant’s lawyer and/or the court do if the defendant insists on exercising his constitutional right to testify? Both questions deserve closer scrutiny.
The first question is: Before taking action, as required by Rule 3.3(b), how certain should counsel be that proposed testimony is or would be false? That issue is critical, since many trial attorneys insist that they virtually never “ know ” that their client intends to lie. And, this insistence makes sense, as defendants who plan to commit perjury generally have no reason to disclose their intention, and, for reasons noted above, defense lawyers, typically facing severe time and resource constraints, have little opportunity or incentive to investigate the veracity of a client’s story.
So: How certain should counsel be that proposed testimony is false before denying defendants the right to make such statements? The short answer is: There’s substantial uncertainty and disagreement. After Nix v. Whiteside , the ABA Standing Committee on Ethics issued Formal Opinion 87–353 (1987) , which advised lawyers to disclose to the court testimony that they “know” is false, but the Opinion failed to define “know.” Meanwhile, under the Rules’ somewhat circular standard, “knowingly” means “actual knowledge of the fact in question,” which “may be inferred from circumstances.” Rule 1.0(f) . This definition is helpful in that it rules out the criminal law’s “willful blindness” standard, which makes intentionally avoiding knowledge legally equivalent to knowledge. In so doing, the definition protects lawyers from disciplinary charges in cases where they refrained from asking their clients questions out of a fear that asking the question would reveal that the clients’ subsequent testimony was perjurious. 78 But beyond that, it leaves doubt as to the applicable trigger.
Seeking to clear up the uncertainty, in 2002, the ABA House of Delegates added the following clarifying language to Comment 8, accompanying Rule 3.3 :
413[8]The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that the evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
Does that supply adequate guidance?
A related question involves the procedure that should be used if a client insists on giving testimony that the lawyer expects will be false, or if a client offers such testimony while on the witness stand. Recall, under Rule 3.3(b) , a lawyer who knows that a client intends to commit perjury or has committed perjury, “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
What constitutes a “reasonable remedial measure?” In most other settings, the prescribed response to client misconduct is withdrawal pursuant to Rule 1.16 . However, courts and commentators have generally agreed that withdrawal is an unsatisfactory way to cope with the perjury dilemma in criminal cases, because it simply transfers the problem to the next attorney and gives a defendant the opportunity to trigger mistrials (potentially ad infinitum) by insisting on the right to testify.
But while withdrawal is disfavored, what constitutes the best course of action is subject to dispute. Some suggest that defense counsel ought to notify the court. But, that tack, of course, breaches client confidentiality, and if the court is notified, numerous questions remain, including whether the court must conduct an independent inquiry or make findings on whether the proposed testimony has constituted, or would constitute, perjury.
Others suggest that the defendant should be allowed to testify in narrative form—that is, without the attorney asking questions. Under this approach, the lawyer would identify the witness as the defendant and invite him to tell his story to the jury, rather than examining the defendant in the normal question-and-answer way. Many believe the narrative approach is the best accommodation of competing principles; it avoids implicating lawyers in perjury while also giving clients, whose life or liberty are at stake, an opportunity to plead their cases. Some, though, see it differently, insisting that the approach “compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence, but subjects the client to an implicit disclosure of information imparted to counsel.” 79
414An alternative approach is to prioritize client confidentiality. Under this approach, lawyers should attempt to dissuade their clients from lying and should conduct the direct examination in a way that minimizes the risk of perjury. However, if they are unable to prevent perjury, they should not disclose it either directly to the court or implicitly to the jury through an unguided narrative.
The late Professor Monroe Freedman was a leading advocate of this position, as he thought it offered the best way out of what he called the “perjury trilemma”—a trio of jointly inconsistent obligations. Freedman argued that, in order to fulfill the first obligation of zealous advocacy, the attorney must learn all the significant facts of the client’s case. At the same time, the attorney labors under a second obligation of confidentiality, as well as a third obligation of candor to the court. Freedman argued that attorneys whose clients commit, or plan to commit, perjury can fulfill at most two of these three obligations. If they have learned all the significant facts, they will know that the testimony is perjurious, and then must either violate confidentiality or be less than candid to the court. Thus, they can reconcile the duties of confidentiality and candor only if they do not know that their clients’ testimony is false, but this implies that they have neglected their duties of zealous advocacy by failing to learn significant facts. Faced with these stubbornly inconsistent obligations, Freedman argued that candor to the court is the principle that ought to give. In his view, the duties of confidentiality and zealous advocacy are of paramount constitutional and moral significance; they are essential to effective assistance of counsel, which is “one of the most significant manifestations of our regard for the dignity of the individual” and a critical protection against governmental abuse. 80 What limited data are available suggests that many practicing attorneys have preferred this approach, although make no mistake: It is contrary to Rule 3.3. 81
1.Do you agree with Freedman’s resolution of the “perjury trilemma?” Is respect for the rule of law and the integrity of the justice system an equally critical value in a free society?
2.Notice that under Rule 3.3, the duty to remedy client perjury lasts only until the end of the proceeding. According to Comment 13: “A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.” 415 Why? What should lawyers do if they learn facts suggesting that a witness testified falsely after the time for review has passed?
3.Returning to the question of how sure lawyers need to be that their client is lying before they take remedial measures, suppose that Whiteside had stated from the beginning that he had seen “something metallic” in Love’s hand and had never remarked to his lawyers “If I don’t say I saw a gun, I’m dead.” Would that level of knowledge trigger Rule 3.3? Alternatively, suppose Whiteside had said to Robinson, “I’m going to tell the court that I saw something metallic, and you’re not going to stop me.” Under Rule 3.3, could Robinson inform the court of this conversation before Robinson testified?
a)You represent a defendant charged with robbery. Your client claims that he was elsewhere on the evening in question. First, he indicates that he was at a shopping mall with two friends. But an investigation reveals that the two friends were at a sporting event on that night. Then your client “remembers” that he was at a party, which the alleged host does not recall throwing. Finally, your client recalls that he was at the movies with his sister. His sister confirms the story, but she is unable to provide further corroboration.
The case goes to trial. May you, or must you, call the sister as a witness? Assume that the prosecution establishes that the robbery could have taken place after the movie. On cross-examination, your client states that, after the movie, he went to the party (the existence of which your previous investigation failed to confirm). He explains his failure to disclose this information during direct examination on the ground that the party involved drugs and he did not want to implicate his friends in possible criminal activities. What are your responsibilities?
b)You are a law student in a criminal justice clinic, representing a homeless client on a shoplifting charge. At the initial hearing, a few minutes after you meet your client for the first time, the judge states that he will release the client with no bail if he has somewhere to stay; otherwise, the client will remain in jail. The client tells you that he will stay with his brother. After you tell this to the judge, the judge releases him. As you leave the courtroom, the client acknowledges that he has no brother and nowhere to stay. What are your responsibilities?
References: Rules 1.6 , 3.1 , 3.3 , 3.4 ; ABA Criminal Defense Standards 4–7.6 and 4–7.7 .
Few skills are more prized by trial lawyers and despised by the public than the art of impeaching a truthful witness. Jerome Frank’s Courts on Trial describes the process:
As you may learn by reading any one of a dozen or more handbooks on how to try a lawsuit, an experienced lawyer uses 416 all sorts of stratagems to minimize the effect on the judge or jury of testimony disadvantageous to his client, even when the lawyer has no doubt of the accuracy and honesty of that testimony. The lawyer considers it his duty to create a false impression, if he can, of any witness who gives such testimony. If such a witness happens to be timid, frightened by the unfamiliarity of courtroom ways, the lawyer, in his cross-examination, plays on that weakness, in order to confuse the witness and make it appear that he is concealing significant facts. 82
Rule 4.4(a) offers some guidance concerning vigorous cross-examination, providing:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Comment 1 to Rule 4.4 elaborates: “Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.”
1.Are clients entitled to a defense that includes impeaching a witness who is telling the truth? Does it matter if one purpose of the impeachment is to induce the witness to drop his or her charges?
2.Many believe that impeachment of a truthful witness is especially problematic when the witness is the complainant in a rape case. Zealous advocacy in that context may carry special costs, in part, because of the particularly acute potential for humiliation, the fact that harsh or dismissive treatment may deter other victims from coming forward, and the societal impact of sanctioning rape myths—of fostering the false impression that women who claim rape are lying or, alternatively, that they provoked, permitted, or deserved what they got. Compounding these sensitivities, rape victims often suffer from rape trauma syndrome, which may lead them to suppress details of an assault. Zealous cross-examination can exploit confusion that may discredit a complainant’s basically accurate account.83
Concerned about the above dynamics, Professor David Luban draws the following conclusion:
Matters would be different if rape were rare and false accusations of rape occurred regularly. Then the advocate’s role would properly focus on the vulnerability of [accused] men, not of women. Suffice 417it to say that the world is not this way . . . . In my view, then, the advocate’s role should stop well short of an all-out assault on the [truthful] prosecutrix. . . . The lawyer can ask the victim whether she consented. The lawyer can also argue reasonable doubt to the jury. What she cannot do is cross-examine her to make her look like a whore.84
Others disagree. In the view of defense lawyer (and Professor) Kathleen Ridolphi:
I have never felt conflicted about what side I stand on in a criminal trial. My political sensibilities keep me firmly planted on the side of the defendant. . . . [Sexual assault cases] frequently require that I, a feminist who rejects harmful stereotypes of women, exploit those same stereotypes in defense of my client. In the majority of sexual assault cases, the complainant and defendant know one another and fabrication or consent is raised as a defense. . . . As a consequence, in most sex cases, my role is to charge the complainant with having agreed to the sexual encounter, or having asked for it, or of being a woman scorned whose feeling of rejection caused her to cry rape as an act of revenge.
Some defense attorneys believe that effective cross-examination can be done in a way that does not demean the complainant. I disagree. No matter what tone of voice is used or how politely the questions are put, a good cross-examination must still ultimately demonstrate that the complaining witness is a liar.
Moreover, if the defense attorney is respectful of the complainant’s feelings, she lends credibility to the prosecution’s case. The more successful the defense counsel is at cutting away at the complainant’s credibility, the more effective the defense and necessarily, more damaged the complainant is. An attorney who is concerned about a complainant’s feelings necessarily compromises her client’s right to an advocate with exclusive loyalty.85
Who has the better argument, Luban or Ridolphi? Should criminal defense lawyers ever soft-peddle their advocacy? Sexual assault cases are not the only context in which complainants are vulnerable and particularly reluctant to report criminal conduct. If you accept Luban’s argument, does it call for special care in other contexts too?
3.ABA Standards state: “Defense counsel should conduct the examination of witnesses fairly and with due regard for dignity and legitimate privacy concerns, and without seeking to intimidate or humiliate a witness 418 unnecessarily.” 86 Does that mean that if it’s “necessary” to humiliate the witness, that humiliation is permissible?
4.ABA Standards also provide that “defense counsel’s belief or knowledge that the witness is telling the truth does not preclude vigorous cross-examination, even though defense counsel’s cross-examination may cast doubt on the testimony.”87 An earlier edition of that Standard included the qualification that the lawyer’s belief “should, if possible, be taken into consideration by counsel in conducting the cross-examination.”88 What follows from this omission?
5.Professor William Simon advances a vision of ethical lawyering involving a “discretionary approach,” through which lawyers should seek to “do justice” by adjusting their actions on behalf of a client to accord with their evaluation of both the “internal merit” of the client’s case and its “relative merit” in relation to the interests of other affected parties. Toward this end, Simon suggests, a lawyer should consider, among other things, whether a particular litigation tactic is likely to promote the factfinder’s ability to decide the case fairly and the purposes of law, at least to the extent those purposes accord with fundamental values. 89 Is such a “do justice” approach sensible in the criminal justice context? Is there consensus within society generally, or the criminal defense bar in particular, about what “justice” requires in particular cases? What are the risks and benefits of Simon’s approach?
6.A public opinion survey presented a hypothetical in which defense counsel believed that an opposing witness’s testimony was accurate and truthful but that skillful cross-examination could discredit the witness’s memory or motives. Three-quarters of surveyed lawyers, but fewer than half of nonlawyers, believed that an attack on the witness’s memory was appropriate. Two-thirds of lawyers, but only 40 percent of nonlawyers, believed that an attack on motives was proper. 90 What, if anything, follows from this difference in views?
Criminal Defense Lawyers’ Possession of Incriminating Physical Evidence: Smoking Guns and Societal Interests
Another controversial issue involves defense lawyers’ treatment of incriminating or potentially incriminating evidence. The treatment of such evidence implicates a range of sometimes competing interests: the lawyer’s duty of loyalty and fidelity; the lawyer’s duty of confidentiality (as discussed in Chapter 6); the client’s Fifth and Sixth Amendment rights; the lawyer’s own personal desire to avoid criminal prosecution 419 and professional discipline; and the state’s legitimate interest in promoting public safety and enforcing its laws. 91 Seeking to reconcile these rival interests, Rule 3.4(a) supplies the relevant authority. It provides that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value,” nor shall a lawyer “counsel or assist another person to do any such act.”
Note that Rule 3.4(a) does not prohibit all concealment or destruction of evidence—only concealment or destruction that’s “unlawful.” Thus, much turns on whether concealment or destruction is or is not criminally proscribed. Importantly here, Model Penal Code § 241.7 and its state analogues criminalize destruction or concealment if the actor believes that an official proceeding or investigation is pending or about to be instituted. Likewise, the federal obstruction of justice statute prohibits any person from altering, concealing, or destroying evidence, with “the intent to impair [its] integrity and availability for use in an official proceeding.” 18 U.S.C. § 1512(c)(1) ; see also id . § 1519 (rendering it a crime to alter, destroy, or conceal “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States”).
The leading cases are State v. Olwell , 394 P.2d 681 (Wash. 1964) ; In re Ryder , 263 F. Supp. 360 (E.D. Va.) , aff’d, 381 F.2d 713 (4th Cir. 1967) ; and Morrell v. State , 575 P.2d 1200 (Alaska 1978) . In Olwell , the court held that an attorney must turn over an incriminating weapon when requested by subpoena, although the attorney should do so without revealing the weapon’s source or the manner in which it was obtained. Ryder reached a similar result and suspended a lawyer who moved a sawed-off shotgun and apparently stolen money from his client’s safety deposit box to his own. In Morrell , a friend of the defendant cleaned out his car at his attorney’s request. On discovering a kidnap plan, he turned it over to the attorney. The attorney consulted the Alaska bar ethics committee, which advised the attorney to return the plan to the friend, advise the friend on laws governing concealment of evidence, and withdraw from the case if it became obvious that an ethical violation would result. The attorney then withdrew and attempted to return the evidence. When the friend proved reluctant to accept it, the attorney helped arrange its transfer to the police. The defendant was convicted and appealed on grounds of ineffective assistance of counsel. In rejecting that claim, the court reasoned that the attorney would have been obligated to see that the evidence reached the prosecutor even if he had received it from the defendant, and that his obligation was even stronger because he had acquired it from a third party. 92
420Attorneys must, in certain circumstances, turn over incriminating evidence in their possession. And they may be compelled to disclose its origin but not necessarily how they learned of its location. A leading, though not uncontroversial, case is People v. Meredith , 631 P.2d 46 (Cal. 1981) . There, a murder suspect told his lawyer that he had taken a wallet from the victim and had left it in a trashcan near his home. The lawyer retrieved it, turned it over to the prosecution, and subsequently withdrew as defense counsel. At trial, the location of the evidence became crucial as a means of linking the defendant to the crime. Accordingly, the court required the lawyer to testify about where he had found the wallet but not to disclose his former representation of the defendant or his reasons for searching the trash can. The court also suggested that, in the future, attorneys ought to consider leaving evidence in its original location.
Meredith attempted to accommodate competing concerns: The court wanted probative evidence to reach the jury but not through disclosure of privileged communications. Other courts have taken different tacks. Some have compelled the defendant to stipulate where the incriminating evidence originated. Others have excluded material when the prosecutor had no way, except through defense counsel, to establish the evidence’s link to the defendant. 93
For its part, Criminal Defense Standard 4–4.7, like the Meredith majority, advises defense counsel not to take possession of physical evidence, whenever possible. 94 For the times when the evidence does come into counsel’s possession, it provides that “[c]ounsel may advise destruction of a physical item [only] if its destruction would not obstruct justice or otherwise violate the law or ethical obligations.” 95 Beyond that:
If defense counsel receives physical evidence that might implicate a client in criminal conduct, counsel should determine whether there is a legal obligation to return the evidence to its source or owner, or to deliver it to law enforcement or a court, and comply with any such legal obligations. A lawyer who is legally obligated to turn over such physical evidence should do 421 so in a lawful manner that will minimize prejudice to the client. 96
1.Consider United States v. Lamplugh , 334 F.3d 294 (3rd Cir. 2003) . There, a gun show promoter and her husband were convicted of failing to file federal income tax returns for 1991 and 1992. The couple’s defense at trial was that they had filed their returns, but that the Internal Revenue Service had either lost or misplaced them. Just prior to the start of their trial, the couple gave their lawyer a box of what they claimed were newly discovered financial records, including what appeared to be copies of their 1991 and 1992 tax returns. Midway through the trial, the lawyer turned the documents over to prosecutors, who waited until their closing argument to show the jury that the purported returns for tax years 1991 and 1992 were dated for those respective years. This was problematic because taxes for those years would not be due until the following April 15th and appropriately-filed returns would be dated April 1992 and 1993, respectively—not 1991 and 1992. The Lamplughs were both convicted.
On appeal, the wife contended that her attorney had rendered ineffective assistance of counsel for not having recognized that the returns were fakes and for not having warned her that the government could use the manufactured returns to bolster its case. The trial judge agreed and granted a new trial. The Third Circuit reversed, however, reasoning that the defendant should not be allowed to “manipulate the justice system by knowingly presenting fabricated written documents.” Id . at 334 . Do you agree? Should the attorney be liable for malpractice or be subject to bar disciplinary sanctions? Was the attorney right to turn the tax returns over to the prosecutor, in the first instance?
2.As noted, Rule 3.4 seeks to balance a range of competing interests. Does it strike the right balance?
3.Consider the scenario in which a distressed client walks into your office, and asks you to keep a loaded pistol that he just used to kill a third party. How do you handle that situation? Recognize, you could take the gun and lock it in your safe. What would be the risk of doing so? You could give the gun to the police without wiping it for fingerprints, but that, of course, may help convict your client. You could wipe the gun for fingerprints and then give it to the police, but that carries its own risks. What are they? You can tell the client to return back to your office later in the afternoon without the gun. But that approach may endanger public safety. How should you proceed?97
422How should a lawyer respond in the following situations? Does it matter whether a legal proceeding is pending or imminent? Should it?
a)The client leaves in the lawyer’s possession the fruits or instrumentalities of a crime such as stolen property or a weapon.
b)A third party turns over such evidence to the lawyer or reveals its location.
c)The lawyer receives from a client documents implicating him in criminal activity.
d)A client describes to the lawyer the location of incriminating evidence. After finding that evidence, the lawyer realizes that it will be irretrievably lost or destroyed if she takes no action.
References: Rules 3.4(a) , 8.4(d) ; ABA Criminal Defense Standard 4–4.7 .
Document Retention and Destruction
A related ethical quandary, particularly for white-collar criminal defense attorneys, involves the retention—or potential elimination—of incriminating documents or digital information. There is no question that, if it is uncovered, the consequences of document destruction can be devastating. As above, Rule 3.4(a) subjects counsel who “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value” or who “counsel or assist another person to do any such act” to disciplinary sanctions. And, state and federal obstruction of justice statutes—which apply to documents just as surely as they apply to personal property—potentially subject individuals who conceal or destroy documents to harsh criminal penalties. 98
Yet document destruction still happens. One common problem is that lawyers who suspect but do not “know” that their client has engaged in illegal destruction may not reveal that fact. As the next excerpt explains, lawyers sometimes go to considerable lengths to avoid knowing that their client has unlawfully destroyed incriminating material.
423Kenneth Mann, Defending White Collar Crime: A Portrait of Attorneys at Work
103–07, 109–13, 117–18, 120–23 (1985).
Two possible goals related to information control motivate the attorney in his meetings with clients. The first goal is to obtain adequate information about the situation being investigated. . . . The second goal, which can exist only in conjunction with the first, is to keep the client from communicating too much information to the attorney, information that would interfere with his building a strong defense. . . .
Defense attorneys know that they walk a narrow line between helping and hurting their case when they facilitate or allow a client to hide facts from the attorney himself. Not having knowledge of an inculpatory fact that the government discovers can completely destroy a defense attorney’s argument, which is why some attorneys reject this approach. But of the attorneys I studied, most either said that they sometimes preferred not to get certain facts from a client or showed by their actions that they felt this way. . . .
Here is an archetype scenario of the attorney in the inquiry avoidance role: a subpoena is issued by a court calling for the client to produce all documents related to a certain transaction. Upon receipt, the client takes the subpoena to an attorney and asks, “How do I proceed?” In the characteristic case of avoidance, the attorney begins by explaining to the client what is called for by the subpoena and what significance certain types of documents would have for the course of the investigation. He will not blandly ask the client what documents currently exist but will explain to the client what the subpoena indicates about the subject and scope of the investigation. Some attorneys go one step further and explain to the client what kinds of documents could be used against the client “ if they exist.” . . .
An attorney who is avoiding inquiry will not ask, “Did such documents ever exist?” or “Was document X or document Y found?” His interaction with the client is likely to be limited to a narrower question: “Do you have anything to present in response to the subpoena?” . . .
Facilitation of Concealment
. . . A large number of respondents indicated that some clients make open proposals to destroy or manipulate evidence. [When interviewed, one] attorney stated the following:
When you have a client who’s in a very bad bind and he’s going to have to essentially convict himself by turning over bank records, or accountant records, or what have you, the client has a very strong impulse to do something about it, to save his own neck. From the client’s point of view, there is not much to lose at that stage—he knows he’s stuck if he doesn’t do something. Occasionally, a client will say something like, “If I get rid of the 424 records now, isn’t it true that no one will know the difference?” . . . I don’t say, “Look, I can’t allow you to do that.” That puts me in a one-up moral position and is most embarrassing for the client. I usually say something like, “The penalties are very severe, and it is true that it may turn up later and cause you more trouble, so I advise you not to do it.” That makes it seem more like I’m helping him protect himself rather than demonstrating some kind of moral superiority. . . .
Justifications
. . . [M]any attorneys would not see effective—as opposed to intentional—facilitation of evidence destruction as a malfunction in the system of adversarial representation, even if it were in fact partially the consequence of the way attorneys handled their clients. Rather, it would be seen as the inevitable by-product of an adversarial system whose higher value requires that the attorney be able to maximize his zeal for his client’s cause while minimizing, if not eliminating altogether, any law enforcement role on his part. Attorneys believed this strongly and were prepared to defend it vigorously. As one stated,
It’s my mission and obligation to defend the client, not to sit in moral, ethical, or legal judgment of him. I cannot join him in transgressing the law, but whatever he does of his own impetus, whatever way he conducts himself in attempting to protect himself, is a decision he has to make independent of what I do. I must inform him of the consequences and significance of his action but not punish him or sanction him or in other ways initiate law enforcement actions against him. My role in the adversary system is to protect him.
. . . The underlying notion of an adversary system helps the attorney to cope with uneasiness he may have about specific actions he takes. The adversary system as a whole is assumed to serve the greater social good, even if some of its details do not appear so. Thus, if a rule mandates or permits a specific behavior—such as an attorney’s answering questions posed by the clients as hypotheticals—that behavior is legitimate because it is part of a system that works. It is a deductive logic: if the system works, then the specific rules are right.
1.As Chapter 6 indicates, the standard justification for the attorney-client privilege and the duty of confidentiality stresses advocates’ obligation to learn all the details of their clients’ cases. To fulfill this obligation, attorneys must be able to reassure their clients that everything they reveal will remain confidential. But most of the lawyers that Mann interviewed do not want to learn all the details of their clients’ cases. Is their “don’t ask, don’t tell” policy consistent with the justification for sweeping confidentiality protections?
4252.Consider Mann’s final observation concerning the worldview of white-collar defense lawyers. They justify a selective ignorance that undermines the effectiveness of the adversary system by arguing that such practices are “part of a system that works. It is a deductive logic: if the system works, then the specific rules are right.” But do those practices make the system work less well?
3.Are current ethical rules adequate to cope with circumstances where attorneys keep their “sharp eye[s] . . . demurely averted”? 99
4. Title 18 U.S.C. § 1519 provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Shredding incriminating documents in the midst of an ongoing criminal investigation violates § 1519 . Would it be permissible for an attorney to avoid knowledge of incriminating documents but inform a client that if such documents exist, they would be very damaging? Could an attorney be liable as an accomplice of a client who then shreds the documents? Note that federal law punishes accomplices as principals.
5.In 2015, investigators for the Environmental Protection Agency found that some 600,000 Volkswagen cars sold in the United States were equipped with “defeat devices,” i.e., special software that could detect when the car’s emissions were being tested and, in the midst of a test, could alter performance to improve results.100 As regulators closed in, at least one in-house lawyer met with Volkswagen engineers and indicated that a “litigation hold” was imminent. (A litigation hold is an internal notice disseminated within a company advising employees that a lawsuit has been filed or is reasonably anticipated; it directs employees to identify, locate, and preserve records pertaining to the subject matter described therein.) The lawyer instructed the engineers to “check their documents,” which the engineers interpreted to mean that they should purge their defeat-device-related records and e-mails prior to the hold being issued. Some forty engineers and other employees subsequently destroyed thousands of documents, though many were later recovered by investigators. Did the in-house lawyer violate 18 U.S.C. § 1519 and/or Rule 3.4(a)?101
6.Consider United States v. Russell, 639 F. Supp. 2d 226 (D. Conn. 2007). There, Philip Russell faced charges for obstruction of justice in connection 426with the investigation of the church’s music director, Robert Tate. According to the indictment, a church employee using Tate’s computer for church-related business discovered images of naked boys. Church officials seized the computer, hired attorney Russell, and promptly confronted Tate with the images, whereupon Take acknowledged responsibility, resigned from the church, and was given the name of a local criminal defense attorney. The following day, Russell dismantled and destroyed the computer. However, unknown to attorney Russell, the FBI had independently launched an investigation into Tate’s use of child pornography.
The government charged Russell with two counts of obstruction of justice. It alleged a violation of 18 U.S.C. § 1512(c)(1) , on the ground that Russell had “corruptly altered, destroyed, mutilated and concealed” an object with “the intent to impair [its] integrity and availability for use in an official proceeding.” In addition, the government alleged that Russell had violated 18 U.S.C. § 1519 , which, as noted above, prohibits the knowing destruction of any object “with the intent to impede, obstruct, or influence the investigation of . . . any matter within the jurisdiction of any department or agency of the United States.” Both counts are punishable by up to twenty years in prison.
Russell moved to dismiss the indictment on the ground that the government could not show that he had intended to obstruct an identifiable investigation because he was unaware that one was in process. The district court rejected that argument. In its view, the fact that the church had treated the computer as evidence and had recommended that Tate retain a criminal defense attorney was enough to suggest that an investigation was reasonably foreseeable. Russell then pled guilty to misprision (concealment) of a felony, based on his failure to report the commission of the child pornography crime. He was sentenced to six months of home confinement and a $25,000 fine.
Critics of the decision questioned how the government would be able to prove that the investigation was reasonably foreseeable beyond a reasonable doubt. 102 They also noted the dilemma for lawyers who inadvertently come into possession of contraband. Are these concerns well taken? What would you have done in Russell’s position?
a)In The Superlawyers, Joseph Goulden describes one of his interviews with a Washington criminal defense lawyer over a candid three-martini lunch. Partway through the interview, the lawyer pointed across the room to a former client. Several years ago, he had represented the client in an FTC investigation. The client had been doing some “odd-ball accounting” to the detriment of certain customers. One of them had complained to the FTC. In the lawyer’s view, the practice constituted a “clear cut violation” of the Robinson-Patman Act. “Trouble was coming,” 427 the lawyer recalled. “It was just a matter of time.” According to Golden, the lawyer stated:
Now, in a situation like this, the documents should tell the whole story and I don’t see any reason why a man should help the federal government build a gallows for himself. At the same time, the bar rules are pretty simple: If I advise him to go burn everything, I can be disbarred for interfering with the processes of justice.
So I take another route. I tell him just what I told you. I tell him . . . without all his sales records the FTC will have a hell of a time making a case. Oh, they could, but only by backtracking to customers. But I know the FTC is so short-handed they won’t do that except in a major case. “Do you still have any documents around that could hurt you?” I asked him. “Some of this stuff must be getting pretty old, and most people turn over their records fairly fast.” 103
Did the lawyer cross a line? If yes, what should the lawyer have done instead?
b)You are a state bar counsel and you are considering whether to file disciplinary charges against Nancy Temple. Temple served as an in-house lawyer for the Arthur Andersen accounting firm prior to its dissolution in connection with the Enron scandal. The conduct at issue involves Temple’s instructions to Andersen staff concerning documents related both to the audit of questionable investment vehicles for Enron, and to the certification of the company’s potentially misleading financial statements. Like many companies, Andersen had a detailed document retention policy calling for the destruction of all nonessential draft documents or conflicting documentation relating to an audit. 104 The policy itself is not unusual. Your concerns arise from the timing and context of a memo that Temple sent on October 12, 2002, calling for compliance with that policy.
Specifically, Temple’s October 12 e-mail to Andersen’s Houston practice director stated: “It might be useful to consider reminding the engagement team of our documentation and retention policy. It will be helpful to make sure that we have complied with that policy.” 105 Then, on October 23, the lead engagement partner on the Enron audit ordered 428 his team to comply with Andersen’s policy. The result was an extraordinary volume of document destruction over the next several weeks. Media reports chronicled the shredding of more than eighteen trunks and thirty boxes of material on only one of the days at one of the offices, compared with an average of one trunk per week in the preceding period. 106 Not until November 10, after the SEC had subpoenaed documents from Andersen concerning its Enron investigation and after Andersen had received a second subpoena in a related lawsuit, did Temple instruct the Enron engagement team “to preserve documents, computer files and other information relating to Enron.” 107
Temple’s conduct was the subject of a 2002 congressional hearing in which she characterized her actions as customary housekeeping duties. In that hearing, she admitted awareness, prior to October 8, of allegations by an Enron employee of inappropriate accounting procedures, as well as an investigation of those allegations by outside counsel. The SEC placed Enron under investigation in early October, and it confirmed that fact publicly in an October 22 press release. Temple’s notes from a conference call on October 8 anticipated that outcome: “Highly probable some SEC investigation.” 108 Temple also knew that outside counsel had been retained on October 9 to assist Andersen with legal difficulties arising out of its financial reporting for Enron.
In subsequent criminal proceedings against Andersen for obstructing the SEC investigation, prosecutors argued that Temple’s “reminder” about the audit firm’s document shredding policies encouraged destruction of materials relevant to that investigation. Andersen was convicted under 18 U.S.C. § 1512 , which makes it a crime to “knowingly . . . corruptly persuad[e]” another person to withhold documents. The U.S. Supreme Court overturned that conviction because the jury instructions did not require findings of the required degree of knowledge. 109 (The influence of that holding, however, is limited because Congress subsequently enacted a new prohibition on document destruction with somewhat different language. 110 )
As state bar counsel, do you file disciplinary charges against Nancy Temple? Could or should she be liable for malpractice? Arthur Andersen, a $9 billion partnership in 2002, imploded after Enron, and its parent company, settled with Enron investors for $40 million. 111
429In general, ethical rules apply across the board; they affect all lawyers equally and impose the same ethical standards on all members of the profession. Prosecutors, however, stand as exceptions to this rule. Given their extraordinary power and wide discretion, prosecutors must conform their conduct to a somewhat more exacting set of ethical standards.
1.The Function of a Prosecutor
Prosecutors have a dual role as advocates and officers of justice; their obligation is to “seek justice, not merely to convict.” 112 Reflecting this, t he ABA’s Criminal Justice Standards for the Prosecution Function provide: 113
Standard 3–1.2: The Function of the Prosecutor
(a)The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.
(b)The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. . . .
In addition, Comment 1 to Rule 3.8 , which sets forth the “Special Responsibilities of a Prosecutor,” advises:
[1]A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of 430 sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. 114
1.Do the admonitions above strike you as realistic? Would you add anything to the ABA’s description of the prosecutorial function?
2.What does “seek justice, not victory” mean? In a leading article, Professor Fred Zacharias argued that the justice prosecutors must pursue “has two fairly limited prongs: (1) prosecutors should not prosecute unless they have a good faith belief that the defendant is guilty; and (2) prosecutors must ensure that the basic elements of the adversary system exist at trial.” 115 Is this enough?
3. Why should a prosecutor seek justice, not victory? Professor Bruce Green explains that there are two theories behind the dictum, one emphasizing the power imbalance between the state and the defendant and the other emphasizing the special duty of the executive to govern justly and impartially. 116 Some add that prosecutors’ compliance with ethical standards is especially critical because abuses that occur under color of law erode public confidence in the legal system.
4.Do prosecutors confront special challenges, and carry special responsibilities, in a system of mass incarceration? 117 The United States leads the world in the use of imprisonment. The U.S. accounts for 5 percent of the world’s population but one-quarter of the world’s prisoners. 118 The U.S.’s level of imprisonment is five to ten times higher than that of other liberal democracies. We imprison individuals at nine times the rate of Germany and seven times the rate of France. 119 Even notoriously repressive regimes like Russia and Cuba incarcerate fewer people, both in raw numbers and per capita. 120 Further, the number of people incarcerated in the U.S. has quintupled since the 1980s to a total of almost 2.2 million, with another 4.6 million people under court supervision. 121
How should prosecutors respond to these facts, particularly since compelling evidence now shows that the primary driver of the above statistics is not crime rates (which are down) or arrest rates (also down) or even the discretionary sentences judges impose? Rather, the primary 431 explanation is “increased prosecutorial toughness when it comes to charging people.” 122
5.A disproportionate number of American prisoners are persons of color. Deborah Rhode reports:
Racial disparities in the criminal justice system cannot be explained solely by higher rates of criminal activity among impoverished people of color. At every stage of the process, similarly situated individuals are treated differently on the basis of race and ethnicity. [People of color are far more likely to be stopped and searched then white individuals.] . . . Controlling for relevant factors, blacks and Hispanics are also substantially more likely than whites to be detained before trial, denied bail, given higher bail, or denied options such as release on their own recognizance. . . . In most studies that compare similarly situated offenders of different races, whites are more likely to have charges reduced and less likely to be incarcerated or to receive extended sentences than blacks and Hispanics. Blacks are also more likely to receive a death sentence even when controlling for the severity of the crime and the characteristics of the victim.123
If, as the evidence overwhelmingly suggests, implicit bias is responsible for many of the above disparities, what can prosecutors do to make the system more equitable?124
You are the prosecutor in a robbery case with strong evidence of guilt. The victim had an excellent opportunity to observe the robber and readily identified him at a lineup shortly after the incident. But the defense also has an eyewitness to the assault—and the defendant’s eyewitness claims that the assailant was not the defendant. That eyewitness does not know the parties and has no obvious motive to lie. However, he also has a prior criminal conviction for lying on a credit report, and that conviction would be admissible to impeach his testimony at trial. In plea negotiations, can you threaten to call in the witness to discuss his testimony and question him about the conviction? You suspect that the threat of public disclosure of this damaging and embarrassing 432 information might cause the witness to refuse to testify or to change his story to avoid taking the stand at trial. 125 How do you proceed?
References: Rules 3.4 , 3.8 , 8.4 .
2.A Prosecutor’s Charging Decision
Two areas of greatest prosecutorial power involve the choice of targets to investigate and the selection of offenses to charge. In most countries, the state is expected to file indictments for every felony supported by sufficient evidence. By contrast, American prosecutors have remarkable leeway to select whether to bring charges and, if they decide in the affirmative, which charges to bring. These decisions are vested in prosecutors alone, and, as the Supreme Court has observed, almost entirely immune from judicial review. See Wayte v. United States , 470 U.S. 598, 607 (1985) . As Professor John Pfaff explains:
[This unfettered discretion] make[s] prosecutors the most powerful actors in the criminal justice system. While the police determine who “enters” the criminal justice process, prosecutors have complete control over which cases they file and which ones they dismiss. If prosecutors decide to move a case forward, their choice of what charges to bring is limited solely by what they think they can prove—or what they think they can convince defendants they can prove [given ubiquitous plea bargains]. These charges in turn often place significant limitations on the sentences that judges can impose. Prosecutors are free to threaten whatever severe sanctions legislators have passed, and legislators have been happy to enact tougher and tougher laws. It’s true that judges are required to sign off on pleas and can thus reject those they find unsatisfactory, but in general, they will acquiesce to the deals struck by the prosecutors and defense attorneys.126
Three main sources of authority inform (though do not necessary circumscribe) prosecutors’ charging decisions: the Rules, the ABA Criminal Justice Standards for the Prosecution Function, and, for federal prosecutors, DOJ’s Justice Manual . Rule 3.8(a) provides that a prosecutor “shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Criminal Justice Standard 3–4.3, provides:
(a)A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.
433(b)After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a reasonable doubt. . . .
(d)A prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.
Standard 3 – 4.4(a) then advises: “In order to fully implement the prosecutor’s functions and duties, including the obligation to enforce the law while exercising sound discretion, the prosecutor is not obliged to file or maintain all criminal charges which the evidence might support.” Then, the section goes on to offer numerous “factors which the prosecutor may properly consider in exercising discretion to initiate, decline, or dismiss a criminal charge, even though it might meet the requirements of 3 – 4.3 .” Standard 3 – 4.4(b) outlines factors the prosecutor may not consider, including “partisan or other improper political or personal considerations” and the prosecutor’s own “hostility or personal animus towards a potential subject.” Finally, Standard 3 – 4.4(d) specifically notes: “The prosecutor should not file or maintain charges greater in number or degree than can reasonably be supported with evidence at trial and are necessary to fairly reflect the gravity of the offense or deter similar conduct.”
Lastly, the Justice Manual § 9–27.230 (2018) (previously known as the U.S. Attorneys’ Manual) provides that prosecutors ought to weigh the following (non-exclusive) factors when deciding whether to file charges:
(1)Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
(2)The nature and seriousness of the offense;
(3)The deterrent effect of prosecution;
(4)The person’s culpability in connection with the offense;
(5)The person’s history with respect to criminal activity;
(6)The person’s willingness to cooperate in the investigation or prosecution of others;
(7)The person’s personal circumstances;
(8)The interests of any victims; and
(9)The probable sentence or other consequences if the person is convicted.
434H. Richard Uviller, “The Virtuous Prosecutor in Quest of an Ethical Standard: Guidance from the ABA”
71 University of Michigan Law Review 1145, 1156–1159 (1973).
The interesting part [of the ABA standard permitting prosecutors to decline to prosecute a case when she herself entertains a reasonable doubt about guilt] is the suggestion that if the prosecutor, imagining himself in the seat of a juror, would not vote for a verdict of guilty, he may decline to present the matter to the system’s designated fact finder. I have heard prosecutors, as a matter of personal conscience, take this notion as an ethical imperative. “I never try a defendant,” so runs the credo, “unless I am personally convinced of his guilt beyond a reasonable doubt.” Or, for some: “beyond any doubt.” Realistically, the prosecutor figures that, inflamed by the brutal facts of the crime or for some other reason, the jury may overlook the basis for the doubt which nags his own judgment. And he could not sleep at night having contributed to the conviction of a man who might just possibly be innocent. Of course, in reaching this extra-judicial judgment, the prosecutor will allow himself to consider relevant items which might be excluded from trial evidence. Nor would his refusal to prosecute the case necessarily mean he would decline to recommend the acceptance of a guilty plea, for the confession which normally accompanies the plea may remove the prosecutor’s doubt.
Yet withal, the prosecutor’s conscientious stand represents a notable modification of our system of determining truth and adjudicating guilt. At the least it creates a new subtrial, informal and often ex parte, interposed between the determinations of the accusing and judging authorities. . . .
A concrete, commonplace example may illustrate the operation of the precept and flesh out our appraisal of its wisdom. Practitioners know too well a sticky item: the one-eye-witness-identification case. For instance, an elderly white person is suddenly grabbed from behind in a dimly lit vestibule by a black youth who shows a knife and takes the victim’s wallet. The entire incident occupies thirty seconds. Some days later, the victim spots the defendant in the neighborhood and has him arrested by the nearest policeman. Although the prosecutor presses him hard, the victim swears he has picked the right man. There is nothing unusual about the defendant’s appearance, the victim never saw him before the crime, and he admits he does not know many blacks personally, but his certainty cannot be shaken. He insists that in those few moments of terror his attacker’s face was “indelibly engraved on his memory.” The defendant may have an alibi: his mother will testify that at the time of the crime he was at home watching television with her (not evidence readily credited). And that is the entire case.
Thus, when the issue stands in equipoise in his own mind, when he is honestly unable to judge where the truth of the matter lies, I see no 435 flaw in the conduct of the prosecutor who fairly lays the matter before the judge or jury. . . . Although the prosecutor’s discretionary powers may be important, and his detached and honorable presence vital, he is not, after all, the sole repository of justice. Thus, I do not believe that the system is served by canons which overplay the prosecutor’s “quasi-judicial” role. He is, let us remember, an advocate as well as a minister of public justice.
1.Is it acceptable for a prosecutor to file charges, or threaten to file additional charges, in a case that he has no intention of trying in the hopes of forcing a guilty plea or inducing cooperation with a government investigation?
2.Of plea bargaining and the trial penalty, Professor Benjamin Barton and now-Judge Stephanos Bibas write:
To sweeten plea deals, prosecutors offer plea discounts by dismissing or reducing the seriousness of some of the charges (which are called charge bargains), offering a suggested lower amount of punishment (sentence bargains), or both. The flip side of the plea discount is the trial penalty: Defendants who refuse to take plea deals face additional and more serious charges, and prosecutors push for more punishment if defendants are found guilty. Judges are key players in the system, because defendants and defense lawyers must believe that judges will impose lower penalties if defendants plead guilty but heavier punishments if they refuse to plead and are convicted at trial. Empirical evidence confirms that judges impose a trial penalty, which creates an increasingly wide spread between plea offers and threatened post-trial sentences.127
Is this system ethical? If it’s not, who bears the blame?
3.How much evidence of guilt should a district attorney demand before filing charges? Notice that bar ethical rules and the ABA Standards require, at a minimum, probable cause—and this probable cause standard is less than exacting. According to Professor Bruce Green, the standard can be satisfied even if the prosecutor is unconvinced that it is “ ‘more likely than not’ that the accused is guilty. All that is needed is a fair possibility of guilt, something more than ‘reasonable suspicion.’ ” 128
Should prosecutors demand more? Some commentators agree with Uviller that prosecutors who insist on proof beyond a reasonable doubt usurp the functions of the judge and jury. In response, critics point out that in nearly all cases, such functions are already displaced through plea bargaining; anything short of a beyond-a-reasonable-doubt standard for 436 cases that do not go to trial thus creates the risk that an innocent person will suffer criminal penalties.
4.It is well established that prosecutors’ charging determinations should not be affected by defendants’ race. See, e.g., Criminal Justice Standard 3–1.6 (“The prosecutor should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status.”); id . 3–4.4(b) (“In exercising discretion to file and maintain charges, the prosecutor should not consider . . . the impermissible criteria described in Standard 1.6 above.”). That said, criminal defendants seeking to prove that a prosecutor has impermissibly allowed race to infect his or her judgment face a tough—and nearly impossible—road. To establish an equal protection violation based on racially selective prosecution, a defendant must prove that the prosecutor’s conduct had a discriminatory purpose as well as a discriminatory effect. 129 Because of the stringency of this standard, vanishingly few defendants have successfully asserted equal protection claims linked to prosecutors’ charging decisions, even though empirical studies consistently show that white suspects are less likely to be charged than their African-American counterparts. 130
5.In a widely publicized book, Paul Butler, a former prosecutor, claims that he knows prosecutors who are “fair minded, concerned about economic and racial justice, and even believe that there are too many people in prison. Unfortunately, their bodies and souls are working at cross-purposes.” Is Butler right?131 In the book, Butler describes his own evolution from a “progressive guy” intent on changing the system, to a gung-ho advocate hell-bent on winning. “I wanted to be well regarded by my peers, to be successful in my career, and to serve my country. And the way to do that, I learned on the job, was to send as many people to jail as I could.” Butler’s office, like most others, reportedly prized “victory above all else,” and often defined victory as the imposition of the maximum allowable sentence.132 What can be done to challenge that mindset?133
6.How, if at all, should public attitudes affect prosecutors’ charging decisions? A recent move toward “community prosecution” has stressed the importance of prosecutorial efforts to reach out to local citizens, and to partner with nonprofit organizations on issues involving crime prevention and alternatives to incarceration. One ongoing challenge, however, is how to reconcile the need for both prosecutorial independence and accountability. To what extent should community views matter on issues such as how to 437 treat crack cocaine offenses, relative to other forms of illegal drug activities? What if the community’s views are divided? 134
Recent critiques of punitive prosecutorial charging decisions and their contribution to mass incarceration have led to a wave of reform efforts and, in some cases, the election of district attorneys running on a platform of progressive prosecution. 135 One example is the Law Enforcement Assisted Diversion (LEAD) program, which channels individuals arrested for low-level drug offenses to support services and drug treatment, rather than prison. Charges are dropped for defendants who complete the program, and early evaluations show that the intervention significantly reduces recidivism. 136 Are there ways of encouraging more prosecutors to experiment with charging and sentencing reforms?
7.How should prosecutors deal with cases involving more than one defendant who may be responsible for the offense? The U.S. Supreme Court cast light on that question in Bradshaw v. Stumpf , 545 U.S. 175 (2005) . There, the government brought charges against two defendants, John David Stumpf and Clyde David Wesley, for armed robbery and murder. Stumpf pleaded guilty to aggravated murder, even though the guilty plea left him eligible for the death penalty. Subsequently, in a contested penalty hearing before a three-judge panel, he claimed in mitigation that he had acted at Wesley’s urging and that Wesley had killed the victim. The state argued that Stumpf had fired the fatal shot. Siding with the state, the panel found that Stumpf “was the principal offender,” and sentenced him to death. Then, at Wesley’s subsequent jury trial, the state presented evidence that Wesley admitted to shooting the victim. Wesley responded that the state had taken a different position at Stumpf’s hearing. Wesley was convicted and sentenced to life imprisonment with the possibility of parole.
Stumpf then moved to withdraw his guilty plea or vacate his death sentence on the basis of the prosecutor’s reliance on inconsistent theories to convict both defendants of the same offense. The Sixth Circuit found for Stumpf, but a unanimous Supreme Court reversed in part and remanded. In the Court’s view, which defendant pulled the trigger was immaterial to Stumpf’s conviction because state law made aiders and abettors liable for murder. However, because Stumpf’s role may have been material to the death sentence, on that point, the Court remanded for further findings. Ultimately, the Sixth Circuit affirmed Stumpf’s death penalty conviction. Stumpf v. Robinson , 722 F.3d 739 (6th Cir. 2013) (en banc). And, Stumpf is scheduled to be executed on September 15, 2021, after serving over thirty-five years on death row.
The same year that the Supreme Court decided Stumpf , the California Supreme Court took a stronger position against inconsistent theories in In re Sakarias , 106 P.3d 931 (Cal. 2005) . There, the California Supreme Court vacated Peter Sakarias’s death sentence where a prosecutor had 438 manipulated evidence to advance inconsistent theories about which defendant (Sakarias or another) had delivered the fatal blow. Rejecting the prosecution’s argument that the use of inconsistent arguments at separate trials “is permissible provided a prosecutor does not argue something that the prosecutor knows to be false,” the court ruled that “fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed.” 106 P.3d at 941–42 . The court went on to explain:
A criminal prosecutor’s function is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial. His or her goal must be not simply to obtain a conviction, but to obtain a fair conviction. . . . See also ABA Model Code Prof. Responsibility, EC 7–13 (“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict”).
Id . at 944 (internal quotation marks and citations omitted).
According to a recent review, what happened to Stumpf and Sakarias is not that rare:
Prosecutors have offered contradictory theories about which defendant stabbed someone with a knife, or chopped a woman’s skull with a hatchet, or held a man’s head underwater. The most common scenario involves a fatal shot: the prosecutor puts the gun in the hand of one defendant, then another. Under the legal principle of accomplice liability, a defendant can be convicted of murder without being the killer. But, if the prosecutor says that a defendant pulled the trigger, it’s easier to ask a judge or a jury for a death sentence. At least twenty-nine men have been condemned in cases in which defense attorneys accused prosecutors of presenting contradictory theories. To date, seven of those twenty-nine have been executed.137
Would an ethical prosecutor ever advance contradictory theories when charging two individuals for the same crime?
8.Some prosecutors’ offices have informal policies not to prosecute certain, minor crimes—such as not prosecuting occasional drug use by individuals without a prior criminal record. What, if any, significance should attach to the office’s informal policy? When the district attorney makes an exception, should offenders have standing to complain?
Some commentators have urged prosecutors to formalize internal guidelines to ensure greater consistency. Consider the concern raised by former prosecutor and law professor, now federal judge, Gerald Lynch:
In effect, as the overbreadth of the formal substantive criminal law drives an increase in prosecutorial power [the pressure will 439 increase] . . . on prosecutors to develop internal administrative practices and standards for the exercise of discretion that will become a separate de facto substantive criminal law. The problem is that this body of law is largely unwritten and may vary from district attorney to district attorney, or even from individual prosecutor to individual prosecutor. 138
However, as advocates of such standards acknowledge, if informal policies become formalized, public, and enforceable by defendants, some of the deterrent power of criminal sanctions might be lost, incentives to cooperate would be reduced, and courts could become enmeshed in difficult evidentiary issues. Separation-of-powers questions would also arise because many believe that the prosecutors’ “role is not to rewrite the law as they would like, but instead to faithfully execute the laws as written.” 139 Are such risks worth accepting? Should internal policies of prosecutors’ offices be subject to external review?
9.Should victims have any right to complain about the non-enforcement of certain offenses? Some have argued that victims and complaining witnesses should be granted constitutional standing to challenge a decision not to prosecute and that courts ought to be permitted to order prosecution in cases involving an abuse of discretion. Would you favor such a policy?
10.One reason certain cases, such as acquaintance-rape cases, aren’t always prosecuted is that some prosecutors insist that they cannot secure convictions; jurors tend to find insufficient proof that there was no consent, absent exceptional circumstances. 140 Would bringing acquaintance-rape cases despite jurors’ reluctance to convict nevertheless be beneficial? How?
Another reason certain cases aren’t prosecuted is that the complaining witness recants or refuses to cooperate. However, some prosecutors’ offices operate with “no drop” policies for domestic violence cases. Under these policies, the government proceeds, even when a survivor requests that her complaint be dismissed. Prosecutors who support such policies reason that, otherwise, victims will be pressured by perpetrators to withhold cooperation. Victims, for their part, often legitimately fear retaliation if the case proceeds, whether or not they willingly testify. Failure to respect victims’ wishes may also discourage them from contacting law enforcement in the first instance. How would you assess the merits of such a policy, which often trade additional risks to one victim in order to achieve greater deterrence and to protect other victims from pressure to withdraw their complaints? 141 If you were to craft prosecutorial policies, would you adopt a “no drop” policy for domestic violence cases? Why or why not?
44011.In response to a series of cases in which police officers were not indicted for killing unarmed suspects of color, a growing number of commentators have called for independent prosecutors in such cases. In some commentators’ view, prosecutors work too closely with local police to be objective, or to ensure the appearance of objectivity, in cases of police homicide. 142 Do you agree? What are the advantages and disadvantages of appointing independent prosecutors or asking some other office, such as the state Attorneys General’s office, to handle such cases? 143
Consider the following conduct. Which actions are impermissible under existing standards? Which actions should be impermissible? What should be the appropriate sanctions?
a)Unable to obtain sufficient evidence to convict certain labor leaders for suspected corruption, the DOJ has successfully prosecuted them for income tax evasion. Some of those leaders had previously been critical of administration policy in general and the Attorney General in particular. 144
b)A federal prosecutor seeking a suspect’s cooperation has learned that the suspect’s elderly parents were unknowing recipients of the fruits of his illegal activity. The prosecutor threatens the suspect’s parents with prosecution, in order to persuade him to cooperate. 145
c)A prosecutor receives a sexual assault complaint by a young African American woman. She claims that she was raped by several white members of a university lacrosse team who had asked her to perform as a stripper. Several of the university’s athletic teams have a record of alcohol-related offenses, and town-gown relations have been complicated by class and racial divisions and tensions.
Yet, the woman’s story seems dubious. The woman has a history of drug, alcohol, and mental health difficulties, and she gives inconsistent accounts of the number of assailants. Further, she is unable to identify assailants from two lineups. And, though she does eventually positively identify three players from a photo lineup, that photo lineup did not conform to accepted practice—and one of the identified players has photographic and telephone records that place him elsewhere. Finally, DNA tests on the woman’s underwear show traces of semen and other 441 material that fail to match any of the lacrosse players. On the other hand, the prosecutor is facing a difficult election campaign, in which support from the African American community will be critical. He maintains that as long as the woman says “ ‘yes, it’s them,’ I have an obligation to put that to the jury.” 146
d)A county attorney in McLean County, Illinois announces publicly that that he believes Illinois’s ban on concealed weapons is unconstitutional and that: “We will no longer use the power and authority of our office to criminalize and punish decent, otherwise law-abiding citizens who choose to exercise the rights granted to them by the Second Amendment.” 147
e)The prosecutor in a highly publicized case involving a white police officer who killed an unarmed black suspect convened a grand jury and took the highly unusual step of presented both inculpating and exculpating evidence. (Typically, only inculpating evidence is presented.) When the grand jury declined to indict the officer, the prosecutor again took an unusual step of publicly releasing all the evidence the grand jury had considered. (Typically, proceedings remain confidential.)
The grand jury transcripts revealed a number of additional anomalies: Although the prosecutors did not press police officers about contradictions in their testimony, prosecutors did challenge certain eyewitnesses about inconsistencies. Also breaking with typical procedure, the prosecutor did not suggest which charges the grand jury should consider, instead leaving it up to the grand jurors to decide. In addition, the Assistant district attorney gave the grand jurors inaccurate instructions concerning when an officer can legally kill a fleeing suspect. And, the prosecutor presented evidence to the grand jury he must have known to be false—specifically, he called a woman who “clearly wasn’t present when this occurred” to testify as an eyewitness.
Many asked the prosecutor to appoint an independent special prosecutor to handle the case, but those calls were rebuffed. 148
f)The prosecutor charged the defendant with one count of income tax fraud, and venue was placed in the District of Columbia. The 442 defendant moved to change the venue to California, his state of residence. The prosecutor vigorously—but unsuccessfully—opposed the motion. The prosecutor then moved for reconsideration, advising defense counsel that a refusal to agree to trial in D.C. would cause him to “up the ante” and add new charges to the indictment. True to his word, the prosecutor ultimately obtained a second (harsher) indictment based on substantially the same facts. 149
References: Rules 3.8 , 3.1 , 8.4 ; Criminal Justice Standard 3–4.4(b) .
You are a prosecutor in a large city. You must decide which (if either) of two suspects to charge in the brutal killing of a police officer. The facts are as follows.
Shortly after midnight on the night of the killing, police officers Robert Wood and Teresa Turko pulled over an automobile to tell the driver that his lights were off. Wood and Turko were unaware that the car had been stolen a few days earlier by sixteen-year-old David Harris. When Wood reached the car, its driver shot him dead and sped off. Officer Turko was unable to get its license number or to describe the driver.
Harris was arrested a month later after boasting to friends that he had been involved in the highly publicized murder. In the course of questioning, he acknowledged having stolen the car, and he ultimately directed the police to the murder weapon—a .22 caliber pistol that he had stolen from his father and concealed in a bayou that washed off any fingerprints.
However, Harris denied having committed the murder. He accused a twenty-eight-year-old drifter named Randall Adams of committing the offense. According to Harris, he had picked up Adams hitchhiking and they had spent the day together. They had gotten a bite to eat, drunk a few beers, smoked some marijuana, and watched some pornographic movies. Harris said that Adams was driving the car when the police officers pulled them over; Harris, who knew that the car was stolen, slumped down in the seat to avoid being seen. Next, he said, Adams reached under the seat to where he had seen a pistol, grabbed it, and killed Officer Wood. On Harris’s account, they parted at Adams’s motel, with Adams telling Harris to forget all about what had happened.
Randall Adams was ultimately found and interrogated—and his story corroborates Harris’s up to a point, but only up to a point. According to Adams, after the food, marijuana, and movies, he returned to his motel at 10 p.m. and watched television for the rest of the night with his brother. The brother corroborates this, but the two have different recollections of what they watched that night. Adams’s brother has stated 443 that he does not wish to testify. Adams has no criminal record, while Harris has a lengthy juvenile record. Both seem sincere, and Harris is an appealing youth whom you believe will make a sympathetic impression on a jury.
The case has attracted considerable public attention, in part because the murder was unsolved for a month and in part because of its sheer cold-bloodedness. The public reaction strongly favors the death penalty for the killer; however, your state does not permit the death penalty for sixteen-year-olds.
How do you proceed? According to the ABA’s Standards, do you have sufficient evidence to charge Harris? Adams? If you believe that the evidence is sufficient to charge either one, whom do you charge for Wood’s killing? If you do not believe the evidence is sufficient, how do you explain to the media and the public that you have released both men despite the fact that one of them almost certainly killed Officer Wood?
Can considerations of whom you think a jury would be more willing to convict enter into your decision? If you charge Adams, how certain must you be of his guilt to seek the death penalty? 150
References: Rules 3.8 , 8.4 .
3.A Prosecutor’s Disclosure Obligations
Under Rule 3.8 , a prosecutor must disclose to the defense evidence that tends to negate guilt or mitigate the offense. Specifically, Rule 3.8(d) provides:
The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
This rule has constitutional underpinnings. Under standards first set forth in Brady v. Maryland, 373 U.S. 83, 87 (1963) , “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment irrespective of the good or bad faith of the prosecution.” Evidence is “material” if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley , 514 U.S. 419, 434 (1995) . “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[ ] confidence in the outcome of the 444 trial.’ ” Smith v. Cain , 565 U.S. 73, 75 (2012) (quoting Kyles , 514 U.S. at 434 ). Furthermore, evidence is exculpatory and subject to disclosure if it affects witness credibility, where the witnesses’ reliability is likely “determinative of guilt or innocence.” Giglio v. United States , 405 U.S. 150, 154 (1972) .
1.Does Rule 3.8(d) adopt or modify Brady’s “materiality” standard? See Cone v. Bell , 556 U.S. 449, 470 n.15 (2009) (“Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady , only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”). In what other ways are the two standards (that of Rule 3.8(d) and Brady and its progeny) different?
2.Should the defendant have a right to receive exculpatory evidence before entering a guilty plea? In United States v. Ruiz , 536 U.S. 622 (2002) , the Supreme Court concluded that the Constitution does not compel the government to disclose impeachment evidence prior to entering a plea agreement. But after Ruiz , courts disagree concerning the ruling’s breadth—and whether the restrictive ruling extends to all material exculpatory evidence or just impeachment evidence. 151 Are there compelling arguments for treating these two types of material differently?
As suggested above, even if the Constitution does not compel disclosure of exculpatory material prior to plea bargaining, Rule 3.8(d) very well might. See ABA Formal Op. 09 – 454 (2009) (requiring disclosure of material exculpatory evidence as soon as the evidence becomes known to the prosecutor and noting that “[a]mong the most significant purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the defendant regarding whether to plead guilty”); see also ABA Criminal Justice Standard 3–5.6(f) (“Before entering into a disposition agreement, the prosecutor should disclose to the defense a factual basis sufficient to support the charges in the proposed agreement, and information currently known to the prosecutor that tends to negate guilt, mitigates the offense or is likely to reduce punishment.”).
3.How far does the prosecution need to go to facilitate discovery of exculpatory material? More pointedly, can a prosecutor intentionally neglect to search for information, out of a fear that evidence damaging to the prosecutor’s case might be discovered? ABA Criminal Justice Standard 3–5.4(g) offers clear guidance, advising: “A prosecutor should not avoid pursuit of information or evidence because the prosecutor believes it will damage the prosecution’s case or aid the accused.” ABA Formal Op. 09 – 454 (2009) , however, provides:
445Rule 3.8(d) requires disclosure only of evidence and information “known to the prosecutor.” Knowledge means “actual knowledge,” which “may be inferred from [the] circumstances.” Although “a lawyer cannot ignore the obvious,” Rule 3.8(d) does not establish a duty to undertake an investigation in search of exculpatory evidence.
Is the wiggle room afforded by Formal Op. 09 – 454 justified?
4.Should the government’s disclosure obligations increase where defense counsel has inadequate resources for trial preparation?
5.For a time it was unclear whether the prosecutor was charged with knowing—and thus, turning over—all material exculpatory information in the government’s possession, no matter where the material was located. That question was answered in Kyles v. Whitley , 514 U.S. 419, 437 (1995) , which held that prosecutors are responsible for “evidence known to the others acting on the government’s behalf in the case, including the police.”
6. Brady operates quite differently from the process for disclosing evidence in civil suits. In the latter, where only money is typically involved, both sides are entitled to review all relevant documents and to depose one another’s witnesses, at length and under oath. Why are defendants entitled to more material in civil discovery than they are in the criminal system, where liberty is at stake? 152
7.Many judges and commentators have criticized prosecutors’ limited discovery obligations. Giving voice to these objections, Professor David Luban observes:
Brady . . . holds only that the prosecution must turn over exculpatory material to the defense. The defense still has no right to depose prosecution witnesses or even to interview an unwilling witness, and in some jurisdictions the prosecution lies under no obligation even to divulge the names of its witnesses to the defense. Nor need the prosecution divulge the results of scientific tests or expert evaluations unless the prosecutor believes these to be exculpatory . . . .
Although the principal rationale for this no-discovery procedural regime is the protection of prosecution witnesses, it appears to be justified as well by the ideal of adversary balance. After all, because of the defendant’s right against self-incrimination, the prosecution has no discovery rights. Fair is fair. But fair is not fair. In fact, the prosecution retains significant discovery rights. By obtaining a warrant, prosecutors and police can search the defendant’s possessions . 153
8.What follows from Professor Luban’s critique? Should courts or legislatures compel prosecutors to have an “open-file” policy? Some European nations specify that all police evidence must be made available to the defense, and a half-dozen states have adopted such open-file policies in the 446 wake of scandals. 154 For example, Texas adopted the Michael Morton Act, which requires prosecutors to share case files and provide nearly all the evidence in those files to the defense “as soon as practicable.” Similarly, five exonerations from death row spurred the North Carolina legislature to pass an open-file law, which compels prosecutors to share “any other matter or evidence obtained during the investigation of the defendant.” Initially, prosecutors resisted and resented the new requirements. But a 2016 study, published in the Washington and Lee Law Review , found that, after a period of adjustment, 91 percent of prosecutors and 70 percent of defense lawyers reported satisfaction with the new policies. According to one North Carolina district attorney: “Prosecutors can have blind spots. We get so convinced that the defendant is guilty. We really can’t be the architects of deciding what’s helpful to the defense and what’s not. Now they decide. In the end, that’s liberating.” 155
Similarly, in the federal system, at least ten U.S. District Courts have expressly eliminated the Brady materiality requirement. A number of additional Districts require prosecutors to turn over more than the Supreme Court would require—but haven’t jettisoned materiality altogether. 156
9.Even absent court or legislative action, should prosecutors choose to share more information with their defense-side counterpart? Some have. Says one big-city district attorney, who has adopted such a policy: “A lot of times, you show them what you’ve got, and it tells them they don’t have a chance. Or on the flip side, they can call you and say ‘I’ve found something out you might not know. Would it change your mind?’ And then we can talk.” 157 Is such transparency consistent with the prosecutorial function and Rule 3.8?
10.Notice, it follows from the material above: Some prosecutors’ offices now broadly disclose information to defendants, while other offices don’t. That means, as journalist Emily Bazelon has observed: “[T]he quality of justice a person receives depends on the place in which he or she is accused of a crime.” 158 Does that give you pause?
a)You are (again) the prosecutor in a robbery case with strong evidence of guilt, where the victim had an excellent opportunity to observe the robber and readily identified him at a lineup shortly after the incident. Defense counsel is a private practitioner who accepts a high volume of cases at flat fees and generally pleads his clients guilty with 447 little or no pretrial investigation. Several days before trial, you learn that the complaining witness has fled the jurisdiction and cannot be located. Must you disclose that fact in plea negotiations? Should you?
b)In another case, you have charged the defendant with aggravated assault. The victim is the defendant’s former girlfriend. Shortly before trial, you learn that the victim is unwilling to testify. Part of her reluctance stems from fear that the defendant will retaliate. She is also concerned that if you disclose facts about her history of psychiatric treatment for depression prior to trial, the defendant will make those private facts public. How do you proceed? What factors would be most relevant to your judgment? Can you assure her you won’t turn information concerning her past treatment over to the defense?
c)In a third case, you have filed charges against a company’s comptroller alleging grave financial misconduct. While plea negotiations are in progress, you learn that your leading witness (a disgruntled employee at the company), has used a racial epithet to describe the comptroller. Must you disclose that fact to the defense? Does it matter whether your own confidence in the witness’s credibility remains unshaken?
References: Rule 3.8(d) ; Criminal Justice Standard 3–5.6(f) .
4.A Prosecutor’s Trial Advocacy
Codified rules and existing case law governing a prosecutor’s conduct at trial are relatively bare-bones. They prohibit a prosecutor from: expressing a personal opinion; making arguments calculated to inflame the jury; arguing facts not in evidence; offering unreliable testimony; engaging in unduly harsh characterizations of the defense; and commenting on a defendant’s failure to testify.
The ABA’s Criminal Justice Standards supply somewhat more concrete guidance. These Standards counsel prosecutors to ensure that the experts they engage are properly credentialed. Standard 3–3.5 . They warn that the prosecutor is not to offer evidence “that the prosecutor does not reasonably believe to be true.” Id . 3–6.6(a) . Witnesses should be examined “fairly and with due regard for dignity and legitimate privacy concerns, and without seeking to intimidate or humiliate a witness unnecessarily.” Id . 3–6.7(a) . Furthermore, prosecutors should not use cross-examination to try to discredit witnesses known to be testifying truthfully and accurately. Id . 3–6.7(b) . Nor should they call witnesses before a jury knowing that the witness will claim a valid privilege or “ask a question that implies the existence of a factual predicate for which a good faith belief is lacking.” Id . 3–6.7(c) and (d) . Finally, the Standards contain several rules concerning closing arguments, including prohibitions on misstating evidence, knowingly drawing false inferences from the evidence, calling attention to a defendant’s decision not to 448 testify, or appealing to “improper prejudices of the trier of fact.” Id . 3–6.8 .
1.Do the above limits strike you as justified? Why or why not?
2.A controversial area of a prosecutor’s trial advocacy is the dilemma of whether to admit potentially unreliable scientific evidence, including evidence concerning fingerprint comparisons, handwriting analysis, and supposed hair, fiber, bite-mark, lead bullet, and shoeprint “matches.”
This evidence has recently come to the fore because, although the Supreme Court has long held that all expert testimony must “rest[ ] on a reliable foundation,” it appears that prosecutors call expert witnesses peddling junk science to testify, with unnerving frequency. 159 Most notably, a 2005 study of Innocence Project data, published in the highly-regarded journal Science , found that “erroneous forensic science expert testimony [constituted] the second most common contributing factor to wrongful convictions.” 160 And, in 2009, an influential report published by the National Academy of Sciences found that many of the forensic methods that were, for decades, used to obtain criminal convictions are, in fact, not scientifically supported. 161 Its blistering conclusion: “Much forensic evidence—including, for example, bite marks and firearm and toolmark identification—is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline.” 162 Even the Supreme Court has noted: “Serious deficiencies have been found in the forensic evidence used in criminal trials.” 163 As just one illustration, it is now clear that one criminal conviction was obtained after the prosecution argued that there was a “one in 10 million” chance that the hair sample found at the crime scene belonged to someone other than the defendant. In fact, one of the hairs turned out to be a dog’s. 164
Beyond the evidence’s inherent limitations, some junk science is outright fraudulent. Investigations have discovered large-scale fraud infecting forensic laboratories in West Virginia, New York, Texas, and Oklahoma. Even several FBI laboratories have been challenged. 165 Other 449 junk science, meanwhile, comes in because of sloppiness—as many crime labs lack adequate standards, fail to employ blind testing or peer review, and are operated by relatively poorly educated individuals in an unregulated, free-wheeling environment. 166
In light of these concerns, Professor Jane Moriarty proposes an amendment to Model Rule 3.8 to state:
The Prosecutor in a criminal case shall . . . make reasonable efforts to assure that only reliable expert evidence is admitted into evidence. A prosecutor shall not use evidence that she knows or reasonably should know is unreliable.
Additionally, Professor Moriarty suggests that the ABA Standards should be amended to state: “A prosecutor should not seek to rely upon unreliable expert testimony, particularly when such testimony would be important to a determination of guilt.” 167 Would you support these amendments? How should they be enforced? Given past abuses, would an even a tougher standard be appropriate?
3.Confronting now-discredited toolmark evidence prior to the National Academy of Science’s influential 2009 report, now-retired U.S. District Court Judge Nancy Gertner faced an ethical dilemma. In United States v. Green, 405 F. Supp. 2d 104 (D. Ma. 2005), Judge Gertner acknowledged that toolmark identification testimony ought not be considered admissible under Daubert. But the judge pointed out that “the problem,” which was that “notwithstanding all of the serious deficiencies . . . every single court post-Daubert has admitted this testimony, sometimes without any searching review, much less a hearing.” Id. at 108. Judge Gertner thus allowed the prosecution’s expert to describe the similarities between the shell casings at issue, but she stopped short of permitting him to testify that there was a definitive match. The judge explained:
I reluctantly [admit the evidence] because of my confidence that any other decision will be rejected by appellate courts, in light of precedents across the country, regardless of the findings I have made. While I recognize that the Daubert-Kumho standard does not require the illusory perfection of a television show (CSI, this wasn’t), when liberty hangs in the balance—and, in the case of the defendants facing the death penalty, life itself—the standards should be higher than were met in this case, and than have been imposed across the country. The more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more.
450Id. at 109. Was Judge Gertner’s compromise decision defensible? What about the prosecutor’s reliance on such testimony? How much are judges to blame for the introduction of unreliable evidence?
4.Another way that prosecutors can subvert the justice system is by offering the testimony of unreliable jailhouse informants, another leading source of wrongful convictions. 168
One way to combat problems with jailhouse testimony is to create a central review system. For example, starting in 1989, Los Angeles instituted a stringent policy for the admission of jailhouse informant testimony. The policy establishes that, prior to admitting such testimony, prosecutors must obtain approval from a jailhouse informant committee headed by the chief assistant district attorney. Rather than being a rubber stamp, data suggests that the committee’s oversight is strict and approvals are exceedingly rare. Furthermore, the policy requires prosecutors to: present strong corroborative evidence beyond the fact that the informant appears to know details of the crime thought to be known only to law enforcement; record all interviews of in-custody informants; and receive specialized training on the risks associated with this type of testimony. Finally, Los Angeles maintains a central index of jailhouse informants, to ensure informants aren’t used repeatedly. 169
Another potential way to combat prosecutors’ willingness to introduce the testimony of unreliable informants is via a change to the Model Rules. Here, the late Professor Myrna Raeder advocated a new Model Rule requiring that “the prosecutor should only introduce evidence when he or she has a factual basis to objectively believe it is reliable.” 170 Would you support such an amendment? Why or why not?
Consider the following trial tactics. Which are impermissible or ethically objectionable?
a)The prosecutor characterizes the defendant police officer as a “punk behind a badge” who used “Gestapo tactics,” and refers to defense counsel as “tricky.” 171
b)In response to defense counsel’s claim that the guilty parties were still at large, the prosecutor claims that the killers were not at large but were in the courtroom. 172
451c)The prosecutor states that defense counsel’s function is to “get his client off” by bringing out “insignificant facts” and “legal technicalities.” 173
d)The prosecutor refers to the testimony of a black defense witness as “shucking and jiving” on the stand. 174
e)“The prosecutor quotes from Biblical passages about the taking of life in order to justify capital punishment as a deterrent.” 175
f)The prosecutor states:
Ladies and gentlemen, all we want is justice. What in the world have I, or the DA’s office, or the police department got to gain by even trying to convict an innocent person? It would destroy our credibility. This defendant committed a crime so vile, so vicious, so despicable, so unnecessary that the death penalty is the only answer. Sure, your job is hard, but you can do it. Only you can do it. The police department has done all that it can do. We have done all that we can do. Only the twelve of you can finish the job by going up in that jury room and bringing back a verdict of death. Unless you do that, the efforts of the police department and my office have all been in vain. 176
g)The prosecutor elicits testimony of a number of jailhouse informants, all of whom testify (quite implausibly) that they sold drugs to a particular family. When later asked about the implausibility of the testimony, the U.S. attorney stated that it didn’t matter if he personally believed the informants. It only mattered what the jury believed. 177
References: Rules 3.1 , 3.8 , 8.4 , Criminal Justice Standards 3–6.5 through 3–6.8 .
5.Actual Innocence and the Prosecutor as “Minister of Justice”
David Luban, “When a Good Prosecutor Throws a Case”
Balkanization Weblog, June 24, 2008
http://balkin.blogspot.com/2008/06/when-good-prosecutor-throws-case.html
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This story appeared in yesterday’s New York Times : a career prosecutor in New York City’s DA’s office, Daniel Bibb, was ordered to reexamine two men’s murder convictions because of new evidence. [The men, Hidalgo and Lemus, had been in prison for more than a decade for 452 a nightclub murder. During those years, evidence gradually accumulated that they were cases of mistaken identity. Pro bono lawyers and a New York City policeman painstakingly gathered evidence and pressured the DA’s office to reinvestigate the case.] After an exhaustive 21-month investigation, Bibb became convinced that they were not guilty. But he couldn’t persuade his superiors to drop the cases, so he went in to the hearing and, in his words, threw the case. “ ‘I did the best I could,’ he said. ‘To lose.’ ”
He made sure that the exculpatory witnesses showed up at the hearing, told witnesses what questions he was going to ask them on cross-examination, and helped defense lawyers draw connections between different pieces of evidence when they weren’t getting it. All the while, he continued to ask his superiors to drop the cases. They agreed to do so for one of the men, and a new trial was ordered for the other. At that point, Bibb said, “I’m done. . . . I wanted nothing to do with it.” Bibb eventually resigned. . . .
Stephen Gillers, a nationally-renowned legal ethics expert, thinks he did [wrong], and might face professional discipline. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case. It entitles him to withdraw from the case, or quit if he can’t.” Bibb, on the other hand, said that he didn’t withdraw because “he worried that if he did not take the case, another prosecutor would—and possibly win.”
I have great admiration for Steve Gillers, but in this case I think he’s wrong. Daniel Bibb deserves a medal, not a reprimand.
Before I explain why, let’s see what the ethics case against Bibb might be. Imagine that a private lawyer representing a private client did the same thing: located truthful but adverse witnesses, revealed his cross-examination, coached the opposing lawyers. And suppose his client lost. The lawyer did it because he thought the other side was right. First, there is no question that the lawyer could be sued for malpractice. As for ethics violations, the lawyer could be charged with violating the requirement of competency (Model Rule 1.1); the requirement that the client, not the lawyer, sets the goals of the representation (Rule 1.2(a)); the requirement of diligence (“zeal,” although the Model Rules don’t use that word in Rule 1.3); and the conflict of interest provision (Rule 1.7). Conceivably the lawyer could also be charged with using client confidences against the client’s interests, if any of his conduct was based on confidential information from the client. In short, a mountain of ethics violations.
Presumably, the same could be said of a prosecutor. . . .
But there is a difference. Prosecutors aren’t supposed to win at all costs. In a time-honored formula, their job is to seek justice, not victory. It’s a mantra that appears in all the crucial ethics documents: in the current ABA Model Rules of Professional Conduct (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” 453 Comment to Model Rule 3.8); in the previous ABA Code of Professional Responsibility (“The responsibility of a public prosecutor differs from that of the usual advocate: his duty is to seek justice, not merely to convict” (EC 7 – 13 )); in the ABA’s Criminal Justice Standards for the Prosecution Function (“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” Standard 3 – 1.2(b) ). The ancestor of all these pronouncements is the Supreme Court’s dictum in a 1935 case, Berger v. United States:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. 178
Admittedly, there’s a Delphic quality to “seek justice, not victory.“ ‘Justice’ is a grandiose and vague word. (Holmes famously said “This is a court of law, young man, not a court of justice,” and wrote that whenever someone starts talking about justice he knows that legal thinking has come to an end.) The actual ethics rules—as opposed to aspirational standards—take a pretty minimalist view of the prosecutor’s responsibilities. They shouldn’t proceed without probable cause, they should make a reasonable effort to ensure that the accused has been informed of his rights, they shouldn’t try to get an unrepresented person to waive rights, and they should do timely Brady disclosures. That’s about it. . . .
And yet I’ve talked with a lot of prosecutors who take “seek justice, not victory” seriously, even if they aren’t 100% confident they know exactly what it requires. At the very least, they know it means that you shouldn’t try to keep people behind bars if you think they didn’t do it.
And just this year, the ABA House of Delegates agreed. The ABA added two new Model Rules to deal with prosecutors’ obligations when new evidence suggests that they obtained wrongful convictions. Rule 3.8(g) requires a prosecutor who learns of “new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” to disclose the evidence to the proper authorities as well as the defendant, and initiate an investigation. And Rule 3.8(h) requires a prosecutor who receives clear and convincing evidence that a defendant was convicted of a crime he did not commit to “seek to remedy the conviction.” . . .
What, after all, did Bibb do wrong? He persuaded witnesses to show up in court and testify (against the state). Think for a moment about the alternative. Bibb was charged with investigating the case, and he did a 454 yeoman’s job to locate the witnesses. Bibb “and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored.” Once he had these witnesses’ evidence, he was under an obligation to turn it over to the defense.
The alternatives: don’t investigate the case for fear you’ll find out that the guys doing 25-years-to-life are innocent; or, having investigated it, don’t turn over the exculpatory evidence to the defense, violating your constitutional and ethical obligations; or, having turned it over, put the defense to the difficulty of locating the witnesses and getting them to court—so, if they don’t succeed, the truth stays buried. THAT’s the ethical obligation of a public prosecutor?
Admittedly, it’s weirder to have the prosecutor remind the defense about how the evidence fits together, and weirder still to tell witnesses what you’re planning to ask them on cross examination. But how does that subvert criminal justice? How does that harm anybody or violate anyone’s interests?
This is the real question. Steve Gillers says that Bibb subverted his client’s case. But who is his client? . . . The court record says that a prosecutor’s client is the “people” or “state” of New York. That doesn’t help much, but it helps some. It helps us to focus on the question of why the people or state of New York have an interest in two innocent men serving long prison terms. . . . The fact is that Bibb didn’t harm any discernible interest of his client. . . .
To “seek justice, not merely to convict” means that prosecutors aren’t supposed to be the ruthless partisan warriors the adversary system presupposes. Bibb was in a tough spot—ordered, for whatever reason, to defend convictions that he thought were wrong. He became a conscientious objector on the battlefield. His way out was unusual enough to land him on the front page of the New York Times . But he did the right thing, and hopefully THAT isn’t unusual.
1.As Professor Luban’s blog post explains, in 2008, the ABA House of Delegates amended Rule 3.8 to deal with the question of actual innocence. Pursuant to Rule 3.8(g) , a prosecutor who learns of “new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” must disclose the evidence to the proper authorities as well as the defendant, and initiate an investigation. 179 Furthermore, Rule 3.8(h) now requires a prosecutor who receives clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of a crime he did not commit to “seek to remedy the conviction.” 180 However, only a minority of states have, 455 so far, adopted the revised Rule 3.8 . 181 And, the requirements are not necessarily as strong as they appear at first blush. A Comment explains that if the prosecutor makes a “good faith” and “independent judgment” that the new evidence does not “trigger the obligations of sections (g) and (h),” then there is no rule violation. 182 This appears to be true even if a court later finds that the prosecutor’s determination was erroneous and objectively unreasonable. 183 Should that be the standard?
2.Several commenters on this blog post disagreed with Luban’s conclusions. They were disturbed by the fact that Bibb had violated the instructions of his superiors to defend the convictions. Ethics expert John Steele wrote:
Should the subordinate lawyer accede to the supervisor’s orders and try the case, ask to be moved to another case, resign from the organization, or secretly subvert the supervisor’s orders while pretending to follow them?
The only answer I can’t support is the last one. It’s deceit on the supervisor, deceit on the organization, and deceit on the court.
Professor Martin Lederman agreed:
The prosecutor here was the elected Manhattan D.A., who chose to go ahead with the prosecution. . . . At that point, Bibb is acting as an agent of the D.A. If he firmly believes his supervisor was wrong, Steele is correct that he can—perhaps should—ask to be removed from the case, or resign. If he thinks the D.A. is willfully acting unlawfully, perhaps he should even make a stink about to the relevant authorities or in public.
But act as an unfaithful agent? . . . [I]t’s a violation of one’s contract with the principal, a violation of agency principles, and, as you concede, a fraud on the D.A.
Professor Stephen Gillers also weighed in:
Morgenthau [the District Attorney] speaks for the client, the People. He was elected, not Bibb. . . . The buck has to stop somewhere and it stops with the elected D.A., who has final discretion. . . .
Would [Professor Luban] support a Bibb-like act in the next case if another assistant threw the case honestly convinced that it is what justice required, ignoring contrary instruction, and it turned out that the freed person really was factually guilty? We law professors have the luxury of living in a more or less hierarchy-free world, but 456 in the ‘real life’ of big law offices, including government ones, hierarchy is process.
In a subsequent article on the case, Luban responded to these questions:
I agree that if you work in an organization—at any rate a decent organization—you should generally respect the chain of command. And if your supervisors reach a different conclusion than you about the same evidence, you should earnestly consider whether their judgment might be better or more objective than yours.
But sometimes it may happen that your certainty remains unshakeable even when you have tried as hard as you can to see it their way. And sometimes the magnitude of the injustice is intolerable. Lastly, once in a great while, nobody can stop the injustice but you. At that point, the demands of conscience, and indeed of human decency, prevail over the office hierarchy.
In the Palladium case, no prosecutor knew the facts and evidence as well as Bibb. He had met the witnesses, he had spent hours sizing them up, he had lived with the case for two years. Of course as an abstract matter he could have read the evidence wrong and his supervisors could have been right. But in the real world, this abstract possibility was negligible. His supervisors had little or nothing to go on except the information that Bibb gave them [which included the identities of the actual killer and his accomplices]. . . .
As for the size of the injustice: if Bibb was right, two innocent men had spent 14 years in prison for a crime they hadn’t committed, and were looking at many more years. The injustice doesn’t get much grosser than that. . . .
Finally, Bibb feared that no other prosecutor could have or would have gotten all the witnesses to testify. If he withdrew, Lemus and Hidalgo might still be in prison. 184
Who has the better argument, Luban or his critics?
3.Lemus and Hidalgo were ultimately exonerated. Both of them sued for wrongful imprisonment, and each collected more than $1 million. They had served fourteen years in prison. The lawsuits asserted that, nearly from the beginning, the police ignored evidence that another man, Thomas “Spanky” Morales, was the actual shooter and that the DA’s office had dragged its feet for years before agreeing to reinvestigate the case. Morales was eventually indicted for the murder, but his indictment was dismissed because of a speedy trial act violation.
As the above reading suggests, some prosecutors fail to “do justice.” Some charge indiscriminately, others breach their Brady disclosure 457 obligations, and still others use a heavy hand while coaching friendly witnesses. Indeed, evidence indicates that prosecutorial misconduct happens with unnerving frequency. In two-thirds of the death penalty cases in which defendants have recently been exonerated by DNA evidence, misconduct by the police or prosecutors played a role. 185 Other investigations have uncovered convictions that were secured based on perjured testimony, fabricated evidence, suggestive identification procedures, dishonest jailhouse informants, and biased and incompetent scientific experts. 186
Yet, formal oversight of prosecutorial conduct has generally been lax. Concerns about separation of powers, together with the absence of legal standards for assessing discretionary decisions, have made courts reluctant to second-guess many prosecutorial actions. Further, as Olsen v. United States (below) indicates, most judges have been unwilling to overturn defendants’ convictions, even in the face of egregious lapses, typically on the ground that the violations are harmless error.
Disciplinary proceedings are similarly exceptional—even in the face of egregious misconduct. 187 Defendants, defense counsel, and judges generally have few incentives to file complaints, and bar enforcement agencies—facing severe resource constraints—have few incentives to proceed on their own initiative, particularly since such charges are likely to be contentious, controversial, and costly to litigate.
Other penalties for prosecutorial misconduct are available but very seldom imposed. These include suppression of unethically-obtained evidence, dismissal of cases, or disqualification for conflicts of interest. 188 Political accountability is equally limited. Although state D.A.s are generally elected and U.S. Attorneys are high-level political appointees, their subordinates are not. The vast majority of enforcement decisions are neither publicized nor memorable. Nor are most voters and politicians who control appointments adequately informed about the 458 complex considerations underlying many enforcement practices. That is not to deny the influence of public opinion on some prosecutorial decisions. But where political considerations play a role, they often reinforce pressures to win cases at the expense of other values. 189
Connick v. Thompson , 563 U.S. 51 (2011) , illustrates how far-reaching prosecutorial immunity can be. The case involved the prosecution’s failure to turn over blood sample evidence exonerating John Thompson from a murder charge in connection with an armed robbery. Thompson spent fourteen years on death row before an investigator happened to discover that the blood sample from the crime scene failed to match Thompson’s. Thompson’s conviction was overturned and he was acquitted on retrial. He then sued the D.A. for failing to train prosecutors in their disclosure obligations. Evidence in the case indicated that, in the decade preceding the trial, Louisiana courts had overturned four convictions because of Brady violations—and, as Justice Ginsburg later observed, “Connick’s office had one of the worst Brady records in the country.” Id . at 103 (Ginsburg, J., dissenting). A jury awarded Thompson $14 million for the violation, $1 million for every year he spent in prison, and the Fifth Circuit affirmed. But, in a five-four decision, the Supreme Court reversed, holding that the D.A. could not be liable for the single act of an errant prosecutor.
In a New York Times op-ed following the decision, Thompson noted that none of the prosecutors involved in the matter, including those who had covered up the violation, had faced criminal or ethics charges. “No one was fired and now, according to the Supreme Court, no one can be sued. . . . A crime was definitely committed in this case, but not by me.” 190
For another example, consider the 2013 denial of an en banc rehearing in United States v. Olsen . There, the defendant, Kenneth Olsen, sought to vacate, set aside, or correct his sentence on grounds that the government had committed a Brady violation by failing to divulge a report that called into question the integrity of the lab analyst who determined that Olsen had laced allergy pills with ricin. The Assistant U.S. Attorney (“AUSA”) prosecuting Olsen knew about this report before Olsen’s trial but failed to disclose its existence to the defense. Following his conviction, this lapse came to light, and Olsen appealed, arguing that the AUSA’s failure constituted a Brady violation because he could have used the report to shred the forensic scientist’s credibility at trial. The Ninth Circuit agreed with Olsen that the report should have been disclosed—but nevertheless let the AUSA off the hook, determining that the evidence was not material to Olsen’s conviction. Olsen petitioned for 459 a rehearing en banc , and that too was denied. To this, then-Chief Judge Alex Kozinski issued the following blistering dissent.
United States Court of Appeals, Ninth Circuit
737 F.3d 625 (2013)
.
The full court was advised of the petition for rehearing en banc . A judge requested a vote on whether to rehear the matter en banc , and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.
n Chief Justice Kozinski wrote a dissenting opinion in which Judges Pregerson, Reinhardt, Thomas and Watford joined.
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
I
Kenneth Olsen was convicted by a federal jury of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175 . United States v. Olsen , 704 F.3d 1172, 1177 (9th Cir. 2013) . Olsen admitted that he produced ricin, a highly toxic poison, but argued that he didn’t intend to use it as a weapon. Instead, he claimed that he was motivated by “an irresponsible sense of curiosity” about “strange and morbid things.”
To show that Olsen acted with the requisite intent, the government produced a bottle of allergy pills found among Olsen’s possessions. An analysis by Washington State Police (WSP) forensic scientist Arnold Melnikoff determined that these pills might contain ricin. Because Melnikoff’s lab wasn’t equipped to test for ricin, Melnikoff sent the pills to the FBI, which confirmed his suspicion. According to the government, these spiked allergy pills were tangible proof that Olsen intended to use the poison as a weapon.
Olsen tried to cast doubt on this evidence by arguing that the pills were contaminated by Melnikoff before he sent them to the FBI. There was evidence that Melnikoff “handled and extensively manipulated” the pills. Melnikoff admitted to examining the pills “not by individually removing them from the bottle with forceps, but rather by dumping them onto his laboratory bench, albeit on ‘a sheet of clean lab paper,’ after he had examined other items on the same bench—which included scraping ricin-positive powder from some of these items.” This was especially important because the ricin test destroyed the pills, so we can’t tell whether the poison was inside them or merely on their surface. As a result, Melnikoff’s competence and veracity were critical to the government’s case. Unfortunately for the prosecution, however, there were many reasons to doubt both.
460Before joining the WSP, Melnikoff ran the Montana State Crime Laboratory. While there, he conducted a hair sample analysis that resulted in the conviction of Jimmy Ray Bromgard for raping an 8-year-old girl. When a DNA analysis exonerated Bromgard after he had spent fifteen years in prison, officials in Washington and Montana took note. So did the New York Times . Washington launched an investigation into Melnikoff’s “misconduct involving courtroom testimony and/or case analysis,” which was expanded after state officials discovered that another innocent Montana inmate had been wrongfully convicted based on flaws in Melnikoff’s work. A month before Olsen’s trial began, a third Montana inmate was exonerated on similar grounds.
The findings of the WSP’s investigation were compiled into a highly critical report: The panel of experts who prepared it doubted “Melnikoff’s diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand.” The report also contained an extensive review of Melnikoff’s work in Washington, recommending that the WSP redo lab work in 14 out of 100 randomly selected cases due to “the presence of unexplained contaminants in his laboratory, among other findings.” A few quotes from the report illustrate its force:
Melnikoff’s employment with the WSP was eventually terminated, and the Washington Court of Appeals affirmed the termination based on a “finding that Melnikoff was incompetent and committed gross misconduct.”
Olsen’s lawyer knew that an investigation was underway, but he didn’t know its scope. Nor did he know that the WSP’s report had been completed and sent to the state decisionmaker two months before Olsen’s trial began. Rather than inform defense counsel and the court of these important developments, the Assistant U.S. Attorney prosecuting the case materially understated the scope, status and gravity of the 461 investigation. . . . Melnikoff’s lawyer, Rocco Treppiedi, made an appearance and represented that the WSP was “in the process of investigating” the matter and that, as of that time, there was “absolutely no evidence, no allegation that Mr. Melnikoff has ever done anything inappropriate with respect to anything other than his opinion testimony on the hair sampling.” The Assistant U.S. Attorney added that the WSP investigation was ongoing and represented that “[t]here is nothing further that you should know about.”
Each of these statements was contradicted by the WSP report. But because the Assistant U.S. Attorney failed to disclose the contents of the report to the district judge, the judge relied heavily on the Assistant U.S. Attorney’s inaccurate representations in evaluating Olsen’s request to cross-examine Melnikoff about the investigation. The judge stated: “[L]et me just say a few words about my understanding of this, and counsel should check me if I am wrong .” He then said that “[t]he only issue here involved at all is whether or not there was some inaccuracy regarding his testimony in Montana about comparing hair samples on rape and homicide cases,” and that “there is nothing in here that I see that indicates that there was any problem at all during the state—his tenure with the State of Washington.” He summarized: “There has been no investigation—or at least no conclusions. They are just bare allegations involving hair sample analyses, the subject of which is not in any way involved in this case.” The district judge surmised that Melnikoff’s forced administrative leave during the investigation must have been taken “out of an abundance of precaution.” He then asked, “[W]here am I off the track?”
Nearly everything the district judge understood to be true was false. But the prosecutor did not correct the district judge, who then concluded that it would be “unfair to Mr. Melnikoff to allow counsel to delve into this issue” and “under an analysis of [Federal Rule of Evidence] 403 , it just would be improper to go into that.” As a result, the government introduced the spiked allergy pills and the jury heard Melnikoff’s testimony, all without ever being informed of these serious doubts about their reliability.
II
Olsen claims that the prosecutor’s failure to disclose the WSP investigative report violated Brady v. Maryland , 373 U.S. 83 (1963) . Brady holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence. This extends to evidence that bears upon the credibility of a government witness. Giglio v. United States , 405 U.S. 150 (1972) . The panel expressly recognizes that the report was favorable to Olsen; nevertheless it dismisses Olsen’s complaint on the ground that the WSP report wasn’t material. Olsen , 704 F.3d at 1183–87 .
462Evidence is material under Brady if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley , 514 U.S. 419, 434 (1995) . “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[ ] confidence in the outcome of the trial.’ ” Smith v. Cain , 132 S. Ct. 627, 630 (quoting Kyles , 514 U.S. at 434 ). To say that the undisclosed information wasn’t material, a court must conclude that the other evidence was so overwhelming that, even if the withheld evidence had been presented to the jury, there would be no “reasonable probability” that it would have acquitted. . . .
Although the investigative report provided objective, empirical support to corroborate Olsen’s claim that Melnikoff contaminated the pills, the panel concludes that there is no “reasonable probability” that the jury would have acquitted Olsen had the investigative report been disclosed. According to the panel, the pills are just a sideshow. Quoting the government’s brief, the panel insists that the pills were “ ‘simply one more layer in an already overwhelming case against the Defendant’ ”—an “overwhelming” case built on “devastating evidence.” Olsen , 704 F.3d at 1185 . “Even if Melnikoff’s credibility as a witness had been totally destroyed we are confident beyond doubt that the jury would have found Olsen guilty, based on the overwhelming evidence presented by the government that he intended to use the ricin he possessed as a weapon.” Id . (emphasis added).
So what is this “devastating,” “overwhelming” evidence? “Thought” evidence, of course: “ ‘What is unique about the evidence in this case is we have captured a thought process,’ ” the prosecutor said in closing. By this, the prosecutor meant the ambiguous evidence of a year’s worth of Olsen’s Internet browsing. In an investigation that would have made Big Brother green with envy, the government produced 20,000 pages showing the websites Olsen visited and the searches he performed. During that year, Olsen visited sites relating to ricin and other poisons. He printed materials from these pages and ordered works with menacing titles such as: “ ‘How to Kill,’ ‘Silent Death,’ ‘Getting Even,’ and the ‘Poisoner’s Handbook.’ ” Olsen also searched for “ ‘silent killers,’ ‘death by poison,’ ‘tasteless poison,’ ‘hidden poison,’ ‘undetectable poisons,’ ‘untraceable poisons’ . . . ‘deadly sleeping pills,’ and ‘common ingredients for death by sleep.’ ”
The panel then tells us of Olsen’s handwritten notes in which he wrote out “the maximum doses, in milligrams,” of four antihistamine and sleeping drugs, including the one that had been spiked with ricin. “Perhaps most incriminating of all,” the panel says, was the fact that “Olsen mathematically calculated the weight in kilograms of a 150-pound person.” We’re told that Olsen’s wife, his mistress and his former boss “all weighed around 150 pounds,” as if this is proof that Olsen intended to kill one (or all?) of them.
463Intriguing, in a Jerry Springer kind of way, but whom was Olsen planning to kill? We don’t know. And what was his motive? The panel doesn’t say. Given that the government so thoroughly “captured [Olsen’s] thought process,” id . at 1186 , it’s surprising that these “thoughts” don’t shed light on the intended victim (or victims?). Surely somewhere in the 20,000 pages of Internet proxy logs Olsen searched for “what to wear to your boss’s funeral” or “how to file a widower’s tax return,” or maybe he watched “How to Murder Your Wife” on Netflix. But the opinion makes no mention of it, which makes the materiality analysis that much weaker.
This is hardly the “overwhelming” evidence of intent that the panel promises. The evidence is consistent with Olsen’s intent to use the ricin as a weapon, of course, but it’s also consistent with the irresponsible curiosity that Olsen claims motivated him. The pills shed an entirely different light on the matter. They demonstrate that Olsen moved beyond curiosity and took concrete steps to use the poison. . . .
Had the jury seen the WSP report or been told of its contents, it may well have developed doubts about whether Olsen poisoned the allergy pills. But without the report, without any indication that Melnikoff’s work had been condemned as incompetent by a panel of experts, without any indication that contaminating samples through careless handling was Melnikoff’s modus operandi, the jury had no reason to doubt that it was Olsen who contaminated the allergy pills. And, once the jury believed Olsen went so far as to spike the pills, all the remaining, otherwise ambiguous evidence falls into place as further corroboration of his ill intent.
III
The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.
A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence. Due to the nature of a Brady violation, it’s highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset. Professional discipline is rare, and violations seldom give rise to liability for money damages. See, e.g., Connick v. Thompson , 131 S. Ct. 1350, 1366 (2011) . Criminal liability for causing an innocent man to lose 464 decades of his life behind bars is practically unheard of. . . . If the violation is found to be material (a standard that will almost never be met under the panel’s construction), the prosecution gets a do-over, making it no worse off than if it had disclosed the evidence in the first place.
Olsen’s prosecution highlights the problem. The prosecutor just did not take his constitutional duty to disclose exculpatory evidence very seriously. . . . [ Editors’ Note : Here, Judge Kozinski notes, in detail, that Elizabeth Brown, a lawyer affiliated with the Melnikoff investigation, repeatedly tried to contact the AUSA, but her calls were not returned.]
Is there any doubt that if the Assistant U.S. Attorney had thought Brown had inculpatory evidence to provide him, he would have managed to connect with her? Or if these messages had been from a doctor or broker or child’s schoolteacher? We can be sure that the Assistant U.S. Attorney would have found the time for an extra phone call. But protecting the constitutional rights of the accused was just not very high on this prosecutor’s list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one’s daily errands signifies a systemic problem: Some prosecutors don’t care about Brady because courts don’t make them care.
I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend. [Here, Judge Kozinski compiled over two-dozen representative cases, exhibiting this problem.]
When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.
Olsen’s case points to another important problem—that of rogue investigators and forensic experts. Melnikoff’s long history of misconduct, resulting in the wrongful conviction of numerous innocent people, is hardly unique. Just last month, Annie Dookhan, a Massachusetts crime-lab technician, was sentenced to 3–5 years imprisonment after spending several years filing positive results for samples she had not properly tested. Her misconduct tainted over 40,000 drug samples, implicating several thousand defendants (hundreds of whom have already been released). . . . Even the vaunted FBI Laboratory at Quantico, Virginia hasn’t been immune from charges of falsification and pro-prosecution bias. . . .
465Because modern criminal trials frequently turn on forensic reports, these incidents of misconduct raise the frightening prospect that many of the over 1.5 million people now populating state and federal prisons might, in fact, be innocent. How do rogue forensic scientists and other bad cops thrive in our criminal justice system? The simple answer is that some prosecutors turn a blind eye to such misconduct because they’re more interested in gaining a conviction than achieving a just result. . . .
We must send prosecutors a clear message: Betray Brady , give short shrift to Giglio , and you will lose your ill-gotten conviction. Unfortunately, the panel’s decision sends the opposite message. The panel shrugs off an egregious Brady violation as immaterial. Had Melnikoff been fully impeached, the only evidence from which the prosecutor could’ve proven Olsen’s intent to use ricin as a weapon would have been a few Google searches and bookstore receipts. This is surely enough to show a reasonable probability of a different result. By raising the materiality bar impossibly high, the panel invites prosecutors to avert their gaze from exculpatory evidence, secure in the belief that, if it turns up after the defendant has been convicted, judges will dismiss the Brady violation as immaterial.
On these facts, I would easily find a Brady violation. My only question is whether the Assistant U.S. Attorney’s failure to discover the WSP report was willful or reckless, and if so, whether an Order to Show Cause should be entered inquiring why he and his supervisor should not be sanctioned. There is room for reasonable disagreement on this point, but I fail to see any plausible argument that the prosecutor did not violate Olsen’s constitutional rights when he failed to disclose evidence casting serious doubt on the reliability of the only dispositive piece of evidence in the case. By turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.
1.Judge Kozinski repeated his claim that there is an “epidemic of Brady violations abroad in the land” in a widely circulated Georgetown Law Journal article that drew a sharp response from DOJ attorneys. 191 Despite disagreement about the scope of the problem, many agree that too many prosecutors seem to blur ethical boundaries in their quest to obtain convictions. What explains this tendency? What would Judge Kozinski say? Do you believe his answer is convincing? 192
2.When serving as Attorney General, Richard Thornburgh described a common view among attorneys holding law enforcement positions:
466You’re putting bad guys in jail. You’re trying to get every edge you can on those people who are devising increasingly more intricate schemes to rip off the public, hiring the best lawyers, providing the best defenses.
So you’re constantly pushing the edge of the envelope out to see if you can get an edge for the prosecution . . . not to abolish constitutional rights, but to give the law enforcement officer an even break. 193
Is that an appropriate description of the prosecutorial role?
3.What should be done to curb prosecutorial misconduct? A Yale Law Journal article suggests a greater role for bar regulators; it recommends that the bar should investigate every case where a court has found misconduct. 194 (As it is, as noted above, bar disciplinary action to punish errant or abusive prosecutors is extraordinarily rare, in part because “those who are in the best position to discover prosecutorial misconduct—judges, prosecutors, and defense attorneys—routinely fail to report it.” 195 ) Another recent proposal is to mandate a Brady colloquy, during which judges would question prosecutors, on the record, about their compliance with disclosure obligations. It is hoped that “[s]uch a colloquy would provide judges an additional tool to enforce Brady , nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct.” 196 Kozinski himself advocates establishing independent prosecutorial integrity units to investigate and prosecute abuses. He also advocates the abrogation of absolute prosecutorial immunity. 197 Would you support such initiatives?
4.Should judges do more to rein in prosecutorial abuse by publicly identifying prosecutors who are found to have engaged in misconduct? Some commentators suggest that publicly shaming prosecutors could help deter unethical behavior and also make it easier to monitor repeat offenders. 198 (Notice, even Judge Kozinski’s dissent fails to identify, by name, the prosecutor he believes acted atrociously.)
This issue recently came to the fore when the Ninth Circuit published an opinion that took the unusual step of naming an errant federal prosecutor, and the government filed a motion requesting the court to amend the opinion to remove the prosecutor’s name from the Federal Reporter. The court responded:
467The government’s motion is DENIED. However, the [court’s original] opinion is hereby amended as follows. . . .
The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. Their job is not just to win, but to win fairly, staying within the rules. That did not happen here, and the district court swiftly and correctly declared a mistrial [given AUSA Jerry Albert’s ethical lapse].
When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal. . . .
[U]pon initial release of this opinion, the government filed a motion requesting that we remove [AUSA Jerry Albert’s] name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. . . . If federal prosecutors receive public credit for their good works—as they should—they should not be able to hide behind the shield of anonymity when they make serious mistakes. 199
Are there compelling counter-arguments that might support this motion to redact? If you had been on the Ninth Circuit panel, would you have granted or denied the motion?
C.Ethical Issues Common to Both Defense Attorneys and Prosecutors
In a criminal justice system where vanishingly few cases go to trial, lawyers’ ethical responsibilities in plea bargaining assume outsized significance. Those responsibilities, like the bargaining process itself, provoke substantial dispute.
To some, plea bargaining is an invitation to injustice—a violation of individuals’ most fundamental rights and society’s most fundamental values. From this perspective, our elaborate constitutional protections serve largely as window-dressing for a system that, in fact, imposes 468 sanctions under a process resembling a street bazaar. John Langbein provocatively suggests that contemporary plea bargaining functions in much the same fashion as medieval torture. In medieval times, extorting confessions became an apparent necessity in order to bypass the continental criminal system’s idealistic but impractical prohibition against the use of circumstantial evidence. In Langbein’s view, the level of complexity and safeguards in our current criminal procedures has produced similar reliance on coercive methods. “Like the medieval Europeans,” he argues, “we have preserved an unworkable trial procedure in form, we have devised a substitute nontrial procedure to subvert the formal procedure, and we have arranged to place defendants under fierce pressure to ‘choose’ the substitute.” 200
Others contend that the system is objectionable because it leads to “innocent defendants being offered (and taking) the same deals as guilty ones.” 201 In the view of still others, the system is problematic because it encourages sloppy lawyering, as any inadequacy in prosecutor’s or defense counsel’s preparation remains largely invisible when cases quickly settle. Since prosecutors are particularly disposed to plead their weakest cases, the incentives to forgo trial are strongest for those at greatest risk of an unjust conviction.
Defenders of plea bargaining concede that it is subject to abuse and that prosecutors operate with multiple objectives apart from pursuing justice: “[T]heir goal may be to enhance their personal batting average, to avoid a potentially embarrassing loss in a particular case . . . to cultivate good relationships with influential private attorneys, or simply to avoid staying too late at the office.” 202 But while acknowledging its flaws, defenders of plea bargaining believe that it is an acceptable, indeed essential, mechanism to conserve scarce judicial resources. These defenders point out that, although the plea-bargaining process may not always separate the innocent from the guilty, the same is true of trials, given evidentiary restrictions and juror biases. Furthermore, they note that defense lawyers are free to present exculpatory evidence during negotiations, and, if they lack the resources or incentive to do so, the same problems would emerge at trial. From this perspective, reform efforts should focus not on restricting plea bargaining, but, rather, on reducing caseloads and increasing resources and regulatory oversight of both prosecutors and defense counsel. 203
4691.In the multiple defendant case described in Problem 6, how convinced of guilt should the prosecutor be before accepting a plea that a defendant accepts to avoid prosecution on a capital offense? ABA Criminal Justice Standard 3–5.6(g) provides: “A prosecutor should not agree to a guilty plea if the prosecutor reasonably believes that sufficient admissible evidence to support conviction beyond reasonable doubt would be lacking if the matter went to trial.” Is that aspirational standard realistic?
2.Critics of plea bargaining have proposed a variety of alternatives, including: less coercive sentencing structures; extension of pretrial disclosure obligations; centralized screening and review of bargains; and nonnegotiable concessions for those who forego trials. 204 Such reforms would exert less pressure on innocent defendants who fear arbitrary or unduly harsh penalties if they risk trial. What reforms would you advocate?
Ethical rules on lawyers’ press statements attempt to accommodate competing values. On the one hand, litigants have a right to an adjudication untainted by pretrial publicity. Without limits on such publicity, defendants would be tried and convicted in courts of public opinion—leading, some say, to the “practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence.” 205 On the other hand, individuals who are falsely accused have a strong interest in clearing their names, and the U.S. Supreme Court has declared that the public, in general, has a right to “guard against the miscarriage of justice by subjecting [the process] . . . to extensive public scrutiny and criticism.” Nebr aska Press Ass’n v. Stuart , 427 U.S. 539, 560 (1976) .
Seeking to balance these competing interests , Rule 3.6(a), applicable to all lawyers, provides:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Then, Rule 3.6(b) sets forth a non-exhaustive list of material that a lawyer may comment on. This list encompasses matters including information contained in a public record; confirmation that an investigation has commenced; and the scheduling or result of any step in litigation. Furthermore, Rule 3.6(b) provides that, in criminal cases, the prosecutor can disseminate additional bare-bones information about the 470 accused, including his or her identity, residence, occupation and family status, and the fact, time, and location of arrest. Finally, Rule 3.6(c) provides a safety-valve that, if another party has disseminated prejudicial information about the lawyer’s client, the lawyer can make a statement, limited to that which is “necessary to mitigate the recent adverse publicity.”
Rule 3.8(f), which sets forth the special responsibilities of a prosecutor, additionally states:
The prosecutor in a criminal case shall . . . refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
1.Is Rule 3.6(a) , which restricts attorney speech, constitutional? The Supreme Court addressed that question in Gentile v. State Bar of Nevada , 501 U.S. 1030 (1991) . There, a divided Court held that the speech of lawyers representing clients in pending cases may be regulated, subject to certain limitations—and that the “substantial likelihood of material prejudice” standard is appropriately circumscribed. In the Court’s words, that test strikes “a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials.” Id . at 1075 . The Court explained:
The restraint on speech is narrowly tailored to achieve those objectives. The regulation of attorneys’ speech is limited—it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys’ comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.
2.What special restrictions does Rule 3.8(f) impose on prosecutors? Notice, while Rule 3.6(a) prohibits statements that create “a substantial likelihood” of materially prejudicing an “adjudicative proceeding,” Rule 3.8(f) appears to go further; it prohibits statements that create “a substantial likelihood of heightening public condemnation of the accused.” Does this language 471 actually create a special constraint on prosecutors? Could a statement violate Rule 3.8(f) without violating Rule 3.6(a)? 206
3.Rule 3.6(a) prohibits comment only when the lawyer’s statement entails a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” How should that standard be interpreted? If, in the midst of a trial, a lawyer tells a reporter that her client “should win,” does that statement violate Rule 3.6? See United Services Automobile Ass’n v. Lisanby , 47 So. 3d 1172, 1185 (Miss. 2010) (finding in the negative because such an assertion would not have a substantial likelihood of material prejudice, “even if overheard by jurors”). Does timing matter? For a statement to risk materially prejudicing an adjudicative proceeding, must trial be underway or imminent? See Iowa Supreme Court Board of Professional Ethics & Conduct v. Visser , 629 N.W.2d 376 (Iowa 2001) (refusing to discipline a lawyer for impermissible statements made almost two years before the trial because the statements would have no impact on the trial). Does it matter if the proceeding is a bench trial versus a jury trial? See Gentile , 501 U.S. at 1077 (observing that the “substantial risk of material prejudice” test “will rarely be met where the judge is the trier of fact, since trial judges often have access to inadmissible and highly prejudicial information and are presumed to be able to discount or disregard it”). Do the cases above draw reasonable lines?
4.Should prosecutors follow special procedures in certain kinds of cases? Consider the arguments surrounding the appropriate policy for the media regarding rape victims’ identity and personal history. Should prosecutors take special pains to avoid disclosing information that would violate victims’ privacy? Or would such a policy violate the public’s right to know and even, potentially, compound the special stigma that attaches to sexual assault cases?
5.By its terms, Rule 3.6(a) applies not only to those lawyers who currently represent a client; it restricts the speech of all those who “participated in the investigation or litigation of a matter.” Does it follow that the lawyers who once represented George Zimmerman in the shooting of Trayvon Martin could be subject to discipline for comments made on national news shows after they quit, such as the claim that Zimmerman was “not doing well” and “may not be in complete control of what’s going on”? 207
6.Rule 3.6 does not restrict what a lawyer can say in court filings, and, once a pleading or motion is filed in court, it is a “public record” subject to disclosure under Rule 3.6(b) . Does this create a significant loophole for the transmission of prejudicial information? Is that loophole justified?
7.Note that Rule 3.6 is largely (although not entirely) symmetric. It limits the speech of both prosecutors and defense lawyers. Some suggest that it should be otherwise and that defense counsel should be unrestricted in their out-of-court advocacy. According to Monroe H. Freedman and Janet Starwood:
472The original justification—the fear of prejudicial publicity—simply does not exist with respect to defendants and their lawyers. The sixth amendment guarantees a fair trial to the defendant, not to the state, and the defendant’s exercise of first amendment rights poses no threat to that guarantee. More importantly, the accused has a first amendment right to reply publicly to the prosecutor’s charges, and the public has a right to hear that reply, because of its ongoing concern for the integrity of the criminal justice system and the need to hear from those most directly affected by it.
They continue:
In addition to the attorney’s right to freedom of expression as the client’s representative, lawyers also enjoy first-class citizenship and are entitled to freedom of expression in their own right. . . . . [F]or the attorney, just as for the defendant, the need to be able to speak freely about a specific case may be particularly acute. The attorney may be especially knowledgeable and concerned about aspects of needed law reform as illustrated by the client’s case. In addition, the attorney will be knowledgeable about the specific case at issue and may feel particularly moved to speak out publicly about the injustices in that case. Finally, the attorney may be the subject of well-publicized personal attacks as a result of representing an unpopular client or cause and therefore may have an important personal stake in publicly setting the record straight. 208
Do you find these arguments persuasive? What governmental interests are advanced by Rule 3.6 ’s limitation of defense attorney speech? Do those interests justify the restriction?
Should any of the following statements subject a prosecutor to professional discipline?
a)In the Duke lacrosse case, the prosecutor described the defendants as “a bunch of hooligans” who were “stonewalling” his investigation, who “don’t want to admit the enormity of what they have done,” and whose “daddies” would “buy big time lawyers.” 209
b)A district attorney announced that a defendant’s grand jury testimony “is full of such blatant lies [that] it’s clear she is just making things up.” 210
473c)In December 2008, Illinois Governor Rod Blagojevich and his chief of staff were arrested for trying to sell the U.S. Senate seat vacated by then-President-elect Barack Obama to the highest bidder. Announcing the arrests, U.S. Attorney Patrick Fitzgerald called their actions a “political corruption crime spree,” noted that the Governor’s conduct “would make Lincoln roll over in his grave,” and said that the Governor “has taken us to a truly new low.” Long after the fact, Fitzgerald offered something of an apology for the ill-advised press conference, stating: “It seemed like a good idea at the time. . . . I probably could have had a colder shower, a little more sleep and some decaf. . . . I do regret that.” 211
References: Rules 3.6 , 3.8(f) ; Criminal Justice Standard 3–7.1 .
You are a prosecutor in a case alleging financial misconduct. Suppose that the defendant refuses to consider a plea and that his lawyer releases a statement denouncing the charges as politically and racially motivated.
a)Citing Rule 3.6, should you report the defense lawyer to disciplinary authorities? Are you obliged to do so?
b)May you respond to the defense lawyer’s statement by detailing the facts that led to your decision? Suppose the facts include allegations of drug use, although you have not charged the defendant with any drug-related offense? Can you assert that the evidence demonstrates a “slam dunk” case of improprieties?
c)Suppose that you do not disclose the drug use, but the press reports it and attributes the information to an unnamed source in your office. How should you respond?
References: Rules 3.6 , 3.8(f) , 8.3 .
Federal and state courts allot a limited number of peremptory challenges in civil and criminal cases, so that attorneys can strike potential jurors who they believe will be unsympathetic to their cause. Generally, a litigant can use a peremptory strike to eliminate a prospective juror for any stated reason—or for no reason at all. In Batson v. Kentucky , 476 U.S. 79 (1986) , however , the Supreme Court imposed a significant limit on lawyers’ discretion to use their peremptory challenges, holding that prosecutors may not exercise peremptory challenges to exclude potential jurors based on race. In the majority’s view, such discrimination injures litigants, potential jurors, and the 474 community, while the state’s perpetuation of invidious stereotypes inevitably erodes confidence in the fairness of the judicial system. Five years after Batson , in Edmonson v. Leesville Concrete Co ., 500 U.S. 614 (1991) , the Court extended the ruling to civil cases, holding that all litigants have a right to be free from discrimination in jury selection. The year after that, the Court held in Georgia v. McCollum , 505 U.S. 42 (1992) , that Batson also prohibits discriminatory peremptory strikes when used by a criminal defendant. Then, in J.E.B. v. Alabama, 511 U.S. 127 (1994) , the Court extended the Batson line of cases to ban the use of peremptory challenges to exclude potential jurors based on gender. Finally, in United States v. Martinez-Salazar , 528 U.S. 304 (2000) , the Court extended Batson to prohibit discrimination based on national origin.
Courts adjudicate Batson challenges using a three-step process. First, a challenging party must make a prima facie showing that the opposing counsel has exercised a peremptory challenge on the basis of race, gender, or national origin. Second, opposing counsel “must offer a . . . neutral basis for striking the juror in question.” (This basis need not be particularly persuasive, or even plausible; it must only be neutral.) Third, “in light of the parties’ submissions, the trial court must determine” whether the challenging party has shown evidence of “purposeful discrimination.” Snyder v. Louisiana , 552 U.S. 472, 476–77 (2008) (internal quotation marks and citations omitted). During step three, counsel’s credibility must be judged, “all of the circumstances that bear upon the issue of racial animosity must be consulted,” and counsel’s proffer of a “pretextual explanation” for the strike generally ought to give rise “to an inference of discriminatory intent.” Id . at 478, 485 .
1.In his concurring opinion in Batson , Justice Marshall wrote: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” 476 U.S. at 102–03 . See also Miller-El v. Dretke , 545 U.S. 231, 266–67 (2005) (Breyer, J., concurring) (advocating the abolition of peremptory strikes for the reasons Justice Marshall had articulated).
In keeping with Justice Marshall’s dark prediction, surveyed practitioners and case files suggest that Batson violations abound. Summarizing this research, one scholar reports:
Despite the prohibition of intentional discrimination, prosecutors seemingly continue to target minority veniremembers with peremptory challenges. Studies of jury-selection patterns reveal shocking disparities in prosecutorial use of peremptory challenges against white and minority prospective jurors. In Jefferson Parish, Louisiana, between 1994 and 2002, prosecutors challenged more than fifty-five percent of African American veniremembers but less 475 than seventeen percent of white veniremembers. Between 2005 and 2009, in Houston County, Alabama, which is twenty-seven percent African American, prosecutors used peremptory challenges to eliminate eighty percent of African American veniremembers so that the resulting juries were either all white or had only one African American member. Exclusion of African Americans is not confined to the South. In Philadelphia, between 1981 and 1997, prosecutors in capital murder cases challenged fifty-one percent of African American veniremembers but only twenty-six percent of white veniremembers. 212
While much of the research, to date, has focused on prosecutors’ skewed use of peremptories, two recent studies suggest that “defense attorneys likely engage in just as much racially motivated juror striking as prosecutors.” 213 Given this recent evidence, should we follow Justice Marshall’s advice and do away with peremptories altogether?
2.In Batson , Justice Marshall further explained:
[W]hen a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors’ motives. Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor’s statement that he struck a juror because the juror had a son about the same age as defendant, or seemed “uncommunicative,” or “never cracked a smile” and, therefore “did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case?” If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory.
Nor is outright prevarication by prosecutors the only danger here. “[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.” A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported. As [the majority] concedes, prosecutors’ peremptories are based on their “seat-of-the-pants instincts” as to how particular jurors will vote. Yet “seat-of-the-pants instincts” may often be just another term for racial prejudice. Even if all parties approach the 476 Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels—a challenge I doubt all of them can meet.
476 U.S. at 105–07 (Marshall J., concurring).
3.A training video filmed in Philadelphia in the late 1980s, after the Court’s decision in Batson , featured then-Assistant D.A. Jack McMahon advising inexperienced prosecutors that “young black women are very bad [on juries], maybe because they’re downtrodden on two respects . . . they’re women and they’re blacks.” McMahon also recommend avoiding older black women, as well as young black men. At the same time, McMahon reminded the trainees that they had to come up with a nonracial reason for their strikes. He advised: “When you do have a black juror, you question them at length and on this little sheet that you have, mark something down that you can articulate at a later time if something happens.” 214 What do you make of this conduct? Should this conduct subject McMahon to professional discipline? Assume a young trainee follows McMahon’s advice. Should the young trainee be exonerated? See Rule 5.2.
4.Judges seem disinclined to find Batson violations, even in supposedly liberal states. In California, for instance, the California Supreme Court dealt with 114 Batson appeals between 1993 and 2015. But, in only one case out of the 114 did the Justices find evidence of racial discrimination.215
Furthermore, even on the rare occasions that Batson violations are found, discipline for the underlying conduct is nearly unheard of. In a survey of fifteen disciplinary agencies, none had ever seen a Batson violation leading to a complaint. One Mississippi prosecutor was found to have engaged in misconduct involving racial bias in jury selection three times against a single defendant. Yet, he never received any public discipline, even though the State Supreme Court justices said that the third case “presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.”216 Should disciplinary agencies be more willing to impose sanctions in order to provide deterrents to misconduct? What might account for their reluctance to do so?
Suppose the prosecutor uses peremptory challenges to exclude:
You are the trial judge. What do you do?
References: Rules 3.8, 8.4(g), Criminal Justice Standard 3–6.3.
Suppose that you are an appellate judge in the case of Timothy Foster, an eighteen-year-old African American man convicted and sentenced to death for killing a seventy-nine-year-old white woman. At Timothy Foster’s 1987 trial in Rome, Georgia, the prosecutor used four of his nine peremptories to strike all the qualified African American jurors from the jury pool. Citing Batson (decided the year before), the defense objected, but the prosecutors offered nonracial justifications for the strikes, including that one juror had a “failure to make eye contact,” while another looked “bored,” while a third was “divorced.” Sometimes, too, the prosecutor’s story changed or was simply incredible. For example, prosecutors initially said they struck juror Eddie Hood because he had a son close to the defendant’s age. Later, when it turned out that two white jurors also had sons who were close in age to the defendant, the prosecutor gave a different “bottom line” reason: Hood was a member of the Church of Christ, and the prosecutor said that the Church of Christ was strongly anti-death penalty. (In fact, the Church of Christ takes no position on the death penalty, pro or con.) Similarly, prosecutors initially explained that they struck juror Marilyn Garrett because she was close in age to the defendant. But Foster was eighteen at the time of trial, while Garrett was thirty-four—and while supposedly objecting to Garrett’s age, the prosecution accepted eight white jurors under the age of thirty-five.
Twenty years after Foster’s conviction, and after decades of procedural wrangling, Foster’s lawyers finally obtained the prosecutors’ trial notes under the Georgia Open Records Act. In the notes, the name of each black prospective juror was highlighted in green, circled and labeled with a “B.” In addition, the first four names on a handwritten list of “Definite NOs” are those of the excluded black jurors. In a separate list, those jurors are ranked against one another, “in case it comes down to having to pick one of the black jurors.”
Vigorously defending the prosecutor’s actions, the State of Georgia now contends that the only reason prosecutors labeled the race of the prospective African American jurors was to anticipate and rebut an all-but-inevitable Batson challenge by the defendant. Further, the State contends:
478The State’s reasons, given both at trial and in sworn testimony in two subsequent proceedings, show that each black prospective juror had characteristics entirely apart from their race that would have put any prosecutor on notice that they may well be inclined against the State’s case. Foster’s attempted comparisons of white prospective jurors who served on the jury with the black prospective jurors ignore the multi-faceted nature of jury selection. Jurors possess multiple strengths and weaknesses from the perspective of the prosecution. It is the sum of the individual that the State assessed. It is not untoward that a venire member was selected as a juror even though that individual possessed a particular attribute cited by the prosecution as a reason for exercising a peremptory challenge on another juror. 219
The trial court found no Batson violation, concluding: “The notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists.” 220 That court’s ruling must be upheld unless it is clearly erroneous. How would you rule? 221
1 David Hoffman, Fifty Resolutions in Regard to Professional Deportment , in A Course of Legal Studies xv (1836).
2 United States v. Wade, 388 U.S. 218, 256–58 (1967) (White, J., dissenting in part and concurring in part).
3 The commentary on criminal defense lawyers’ ethical obligations to guilty clients is extensive. For representative selections, see Deborah L. Rhode , In the Interests of Justice 53–64 (2000); Barbara A. Babcock, Defending the Guilty , 32 Cleveland St. L. Rev. 175 (1983) .
4 John B. Mitchell, The Ethics of the Criminal Defense Attorney—New Answers to Old Questions , 32 Stan. L. Rev . 293, 301 (1980) .
5Id. at 302.
6Id. at 314. Johnnie Cochran has offered a similar explanation: “It is the responsibility of the criminal defense attorney to police the police [and] to audit the government.” Johnnie L. Cochran, Jr., How Can You Defend Those People?, 30 Loy. L.A. L. Rev. 39, 42 (1996).
7Mitchell, supra note 4, at 336.
8 Babcock, supra note 3, at 177–78.
9 Lloyd P. Stryker , For the Defense 217 (1947) (quoting Erskine).
10 Mitchell, supra note 4, at 329.
11 Am. Bar Ass’n, Perceptions of the U.S. Justice System 59 (1999).
12 Amanda Bronstad, Lawyer Poll—Most Lawyers Would Not Defend Terrorists , L.A. Bus. J. , Nov. 5, 2001, at 1.
13 Id . (quoting Dershowitz).
14 David Feige, How to Defend Someone You Know Is Guilty? , N.Y. Times Mag . , Apr. 8, 2001, at 59–60.
15 Adam Lee Nemann, Defending Those Accused of Unthinkable Crimes, https://www. nemannlawoffices.com/blog/defending-those-accused-of-unthinkable-crimes.cfm (quoting Laurie Shanks).
16 Id .
17 Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders , 106 Harv. L. Rev. 1239, 1275–76 (1993) (internal quotation marks omitted).
18 Id . at 1278 .
19 See David Luban , Lawyers and Justice 58–63 (1988); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues , 5 Hum. Rts. 1, 12 (1975) .
20 Alan M. Dershowitz, Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System 145 (1996).
21 H. Richard Uviller, The Tilted Playing Field 298 (1999); see also Monroe H. Freedman, Personal Responsibility in a Professional System , 27 Cath. U. L. Rev . 191, 199, 204 (1978) (stressing that “once the lawyer has assumed responsibility to represent a client, the zealousness of that representation cannot be tempered by the lawyer’s moral judgments of the client or the client’s cause”).
22 Abbe Smith, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things , 28 Hofstra L. Rev . 925, 951 (2000) .
23Id. at 954.
24Id. at 953.
25Timothy Beneke, Men on Rape 104–05 (1982).
26Jodi Kantor & Megan Twohey, She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement 178–79 (2019) (quoting Bloom).
27Id. at 179.
28Maria Puente, Rose McGowan: Lisa Bloom Should be “Disbarred” For Helping Harvey Weinstein Discredit Her, USA Today, Sept. 10, 2019.
29Julie K. Brown, How a Future Trump Cabinet Member Gave a Serial Sex Abuser the Deal of a Lifetime, Miami Herald, Nov. 28, 2018.
30Id.
31Noel King, Alan Dershowitz Denies Epstein Rape Accusations and Defends Role in Sweetheart Deal, NPR, July 15, 2019, https://www.npr.org/2019/07/15/741739336/alan-dershowitz-weighs-in-on-his-work-on-the-jeffrey-epstein-case.
32 See generally Alabama v. Shelton, 535 U.S. 654 (2002) ; Strickland v. Washington, 466 U.S. 668 (1984) ; Scott v. Illinois, 440 U.S. 367 (1979) ; Argersinger v. Hamlin, 407 U.S. 25 (1972) .
33 Am. Bar Ass’n, Standing Committee on Legal Aid and Indigent Defense, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice 19 (2005).
34 Barry Scheck et al., Actual Innocence 187 (2000).
35 John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform 137 (2017).
36 Deborah L. Rhode, Access to Justice 123 (2004) .
37 Report of the Comm’n to Review the Criminal Justice Act, reprinted in 52 Crim. L. Rep. 2265, 2284–85 (1993). Some lawyers may also be tempted to pile on clients, in order to fatten their wallets. See, e.g., Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People’s Justice 33 (2013) (reporting on a Washington defense lawyer who took on 413 felony cases in a given year and pocketed a princely $500,000, even though that case volume meant the lawyer “could devote an average of only four hours per case”).
38 Stephen J. Schulhofer, Client Choice for Indigent Criminal Defendants: Theory and Implementation , 12 Ohio St. J. Crim. L . 505, 506 (2015) ; Richard A. Oppel Jr., Preferring a Quick Guilty Plea to a More Thorough Defense , N.Y. Times , Mar. 30, 2018, at A10.
39Radley Balko, In Texas, A Novel Idea to Address the Public Defender Crisis, Wash. Post, Jan. 28, 2014.
40Oppel, supra note 38, at A10 (reporting on a criminal defense lawyer in Galveston, Texas, who was reportedly “pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated”); Nichole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court 83–85, 103 (2016) (reporting that, in Cook County, Illinois, defense counsel who engaged in zealous advocacy were called names and punished; in one case, a zealous lawyer was locked up with her client).
41Schulhofer, supra note 38, at 506.
42Pfaff, supra note 35, at 137.
43Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times, Jan. 31, 2019 (quoting the ABA).
44 The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel 66 (2009)
45Benjamin H. Barton & Stephanos Bibas, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law 26–27 (2017).
46Oppel & Patel, supra note 43.
47Barton & Bibas, supra note 45 at 27.
48Constitution Project, supra note 44, at 69.
49 Stephen Bright, Keep the Dream Alive , Yale L. Rep., Fall 1999, at 27.
50 Roy B. Flemming, Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients , 1986 Am. B. Found. Res. J ., at 253–54, 257–58, 261, 268, 276 .
51 Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute (1987).
52 Nat’l Ass’n of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save it 5 (2018).
53 John Gramlich, Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do Are Found Guilty , Pew Res. Ctr ., June 11, 2019 (reporting that, of the federal criminal defendants who went to trial in 2018, 83 percent were convicted and 17 percent were acquitted).
54 See generally Schulhofer, supra note 38 ; Adam Liptak, Need-Blind Justice , N.Y. Times , Jan. 5, 2014, at SR4.
55 Liptak, supra note 54, at SR4.
56 See id .
57 Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013) .
58 Id . at 1124 .
59 Id . at 1127 . Similar litigation resulted in a settlement in New York. See Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010) . The settlement agreement, reached on the eve of trial, is available at http://www.nacdl.org/ criminaldefense.aspx?id=20192 .
60 Mark Bennett, In Comal County, a Big Deal for Indigent Defense (Jan. 6, 2014), http:// blog. bennettandbennett.com/ 2014/ 01/ in-comal-county-a-big-deal-for-indigent-defense/ .
61 In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Pub. Def., 561 So. 2d 1130, 1132 (Fla. 1990) .
62Id. at 1136.
63Id. at 1139.
64Stephen F. Hanlon, Case Refusal: A Duty for a Public Defender and a Remedy for All of a Public Defender’s Clients, 51 Ind. L. Rev. 59, 63–65 (2018) (quotation marks omitted).
65 For the Bureau of Justice Statistics study, see id. For the three-year finding, see Morris B. Hoffman et al., An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent , 3 Ohio St. J. Crim. L . 223 (2005) .
66 See Hoffman et al., supra note 65.
67 Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation , 63 Stan L. Rev. 317 (2011) .
68 James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes , 122 Yale L.J . 154 (2012) .
69Van Cleve, supra note 40, at 84, 146–47, 161–62.
70 ABA Formal Op. 06–441 , at 9 (2006) .
71 Richard Posner, The Problematics of Moral and Legal Theory 163–64 (1999). Note, some would dispute Posner’s factual premise that the probability of convicting a guilty person is at “a very low level.” Cf . Nat’l Registry of Exonerations, Exonerations of 2016 (Mar. 2017) (reporting that there were 166 confirmed exonerations in 2016 alone and observing that, in 94 of the 166 exonerations, no crime actually occurred).
72 See David Cole, No Equal Justice 86–87 (1999); Anthony Lewis, The Silencing of Gideon’s Trumpet , N.Y. Times Mag. , Apr. 20, 2003, at 50, 51.
73 Victor E. Flango & Patricia McKenna, Federal Habeas Corpus Review of State Court Convictions , 31 Cal. Western L. Rev. 237, 259–60 (1995) .
74 Cole , supra note 72, at 87; Bright, supra note 49; Robert Sherrill, Death Trip: The American Way of Execution , The Nation , Jan. 8/15, 2001, at 20.
75 Barton & Bibas , supra note 45, at 30 (quoting Hal Strauss). For examples, see Harrington v. Richter, 562 U.S. 86 (2011) (state habeas court was not unreasonable in finding that the petitioner was not prejudiced by counsel’s failure to consult blood evidence experts or to offer their testimony); Premo v. Moore, 562 U.S. 115 (2011) (suggesting that the trial court was not unreasonable in finding no ineffective assistance where the attorney assessed a plea without seeking suppression of a confession assumed to have been improperly obtained).
76 Tippins v. Walker, 77 F.3d 682, 687 (2d Cir. 1996) ; Burdine v. Johnson, 66 F. Supp. 2d 854, 863–66 (S.D. Tex. 1999) , aff’d., 262 F.3d 336 (5th Cir. 2001) .
77 Barton & Bibas , supra note 45, at 89–90.
2 Whiteside’s version of the events at this pretrial meeting is considerably more cryptic:
“Q:And as you went over the questions, did the two of you come into conflict with regard to whether or not there was a weapon?”
“A:I couldn’t—I couldn’t say a conflict. But I got the impression at one time that maybe if I didn’t go along with—with what was happening, that it was no gun being involved, maybe that he will pull out of my trial.”
78 Thus, for example, under a willful blindness theory, drug couriers who deliberately refrain from looking in the suitcase they are hired to transport across the border can be convicted of knowingly transporting drugs.
79 Rule 3.3: Candor toward the Tribunal, Legis. Hist. (ABA) Rule 3.3 (2006) .
80 Monroe H. Freedman, Lawyers’ Ethics in an Adversary System 4 (1975); see also Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics 153–90 (rev. ed. 2002).
81 Monroe Freedman, Getting Honest About Client Perjury , 21 Geo. J. Legal Ethics 133, 148 (2008) ; Lauren Reskin, How Lawyers Vote on Tough Ethical Dilemmas, ABA J. (1986) (reporting that 41 percent of polled attorneys believed that informing the court of perjury would violate the client’s rights to effective assistance of counsel).
82 Jerome Frank, Courts on Trial 82 (1949).
83 Livia L. Gilstrap et al., Child Witnesses: Common Ground and Controversies in the Scientific Community, 32 Wm. Mitchell L. Rev . 59, 69 (2005) ; Maggie Bruck & Stephen J. Ceci, The Suggestibility of Children’s Memory, 50 Ann. Rev. Psycho l. 419, 436 (1999) .
84 David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann , 90 Colum. L. Rev. 1004, 1028–31 (1990) .
85 Kathleen M. Ridolfi, Statement on Representing Rape Defendants , in Professional Responsibility: Ethics by the Pervasive Method 221–23 (Deborah L. Rhode ed., 1994).
86 ABA Standards Relating to the Administration of Criminal Justice, The Defense Function, 4–7.7(a) (4th ed. 2018).
87 Id . at 4–7.7(b).
88 ABA Standards Relating to the Administration of Criminal Justice, The Defense Function, 4–7.6(b) (1979).
89 See generally William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (1998).
90 Wes Hanson, Lawyers, Lawyers, Lawyers , in Ethics: Easier Said than Done 38 (1993).
91 Stephen Gillers, Guns, Fruits, Drugs and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence , 63 Stan. L. Rev. 813, 817 (2011) .
92 Morrell v. State, 575 P.2d 1200, 1211 (Alaska 1978) .
93 Geoffrey Hazard Jr. & William Hodes, The Law of Lawyering § 1.6:401, at 194 & § 3.4:204, at 631 (2d ed. 1990).
94 ABA Standards Relating to the Administration of Criminal Justice, The Defense Function, 4–4.7(d) (2015). However, the Standard recognizes that defense counsel might need to take possession of such evidence in various circumstances:
(i) when counsel reasonably believes the client intends to unlawfully destroy or conceal such evidence; (ii) when counsel reasonably believes that taking possession is necessary to prevent physical harm to someone; (iii) when counsel takes possession in order to produce such evidence, with the client’s informed consent, to its lawful owner or to law enforcement authorities; (iv) when such evidence is contraband and counsel may lawfully take possession of it in order to destroy it; and (v) when defense counsel reasonably believes that examining or testing such evidence is necessary for effective representation of the client.
95 Id . 4–4.7(b).
96 Id . 4–4.7(e).
97 Gillers, supra note 91, at 817.
98 See, e.g., 18 U.S.C. § 1512 (c)(1) (making it a federal crime to knowingly alter, destroy, or alter any record with the intent to impair the object’s integrity or availability for use in an official proceeding); id . § 1519 (subjecting anyone who conceals or destroys any document “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or . . . or in relation to or contemplation of any such matter or case” to twenty years imprisonment). Document destruction can also occur in the civil context. If it does, lawyers may be subject to sanctions, per Fed. R. Civ. P. 37 , and also face charges that they have engaged in spoliation.
99 Marvin Frankel, The Search for Truth: An Umpireal View , 123 U. Penn. L. Rev . 1031, 1035 (1975) .
100 Guilbert Gates et al., How Volkswagen’s ‘Defeat Devices’ Worked , N.Y. Times , Mar. 16, 2017.
101Taryn Marks, How VW’s In-House Lawyers Screwed Up a Litigation Hold, Law.com, Jan. 12, 2017.
102 Evan T. Barr, Outside Counsel: Russell: Prosecuting Defense Counsel for Obstruction , N.Y. Law J. , Nov. 21, 2007, at 4.
103 Joseph Goulden, The Superlawyers 287–89 (1972).
104 General retention programs target entire categories of material for destruction at preordained intervals, typically once the documents reach a certain age. A complete copy of the Andersen policy, Client Engagement Information-Organization, Retention and Destruction, Feb. 1, 2000, is reprinted in Destruction of Enron-Related Documents by Andersen Personnel: Hearing Before the H. Comm. on Energy , 107th Cong. 79–103 (2002) [hereinafter Andersen Hearing ]. For discussion, see Deborah L. Rhode & Paul Paton, Lawyers , Ethics and Enron , 8 Stan. J.L. Bus . & Fin. 9 (2002) and Enron: Corporate Fiascos and Their Implications (Nancy B. Rapoport & Bala G. Dahran eds., 2004).
105 E-mail from Nancy Temple to Michael C. Odom (Oct. 12, 2001), reprinted in Andersen Hearing , supra note 104, at 45.
106 April Witt & Peter Behr, Losses, Conflicts Threaten Survival , Wash. Post , July 31, 2002, at A1; Robert E. Hinerfeld, A Broader View of Discovery Ethics: The Societal Context , Prof. Law . , 35, 55 (2002).
107 E-mail from Nancy Temple to David Duncan (Nov. 10, 2001), reprinted in Andersen Hearing , supra note 104, at 63.
108 Witt & Behr, supra note 106, at A1.
109 Arthur Andersen v. United States, 544 U.S. 696 (2005) .
110 See Daniel K. Joseph, Stop the Shredding: Document Retention After U.S. v. Andersen , Prof. Law . 13 (2006).
111 Id . at 14, n.4 .
112 Model Code of Prof’l Responsibility , EC 7 – 13 (1969).
113 These standards are available online at http:// www.americanbar.org/ groups/ criminal_ justice/ standards/ ProsecutionFunctionFourthEdition.html . For the scope and bite of these Standards, see Standard 3 –1.1(b) (“These Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are written and intended to be entirely consistent with the ABA’s Model Rules of Professional Conduct, and are not intended to modify a prosecutor’s obligations under applicable rules, statutes, or the constitution. They are aspirational or describe ‘best practices,’ and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate for a motion to suppress evidence or dismiss a charge.”).
114Idaho Rules of Prof’l Conduct, R. 3.8 cmt. 1.
115 Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev . 45, 49 (1991) .
116 Bruce A. Green, Why Should Prosecutors ‘Seek Justice’ ?, 26 Fordham Urb. L.J. 607 (1999) .
117 See generally Angela J. Davis, The Prosecutor’s Ethical Duty to End Mass Incarceration , 44 Hofstra L. Rev . 1063 (2016) (making an affirmative case).
118 Pfaff , supra note 35, at 1.
119 Emily Bazelon, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration xxv (2019).
120Pfaff, supra note 35, at 1.
121Bazelon, supra note 119, at 242.
122Pfaff, supra note 35, at 6, 127.
123Deborah L. Rhode, Character in Criminal Justice Proceedings: Rethinking Its Role in Rules Governing Evidence, Punishment, Prosecutors, and Parole, 45 Am. J. Crim. L. 353, 389–90 (2019).
124For the fact that many of these disparities are attributable to implicit bias, see id. at 391–92 (collecting sources) and L. Song Richardson, Systemic Triage: Implicit Racial Bias in the Criminal Courtroom, 126 Yale L.J. 864 (2017).
125 This fact pattern is modeled on a case in Adventures in Legal Ethics, produced by Stephen Gillers for New York Law School.
126 Pfaff , supra note 35, at 133.
127Barton & Bibas, supra note 45, at 83.
128 Bruce Green, Prosecutorial Ethics as Usual , 2003 U. Ill. L. Rev. 1573, 1589–90 .
129 United States v. Armstrong, 517 U.S. 456 (1996) ; United States v. Bass, 536 U.S. 862 (2002) ; see also Yick Wo v. Hopkins, 118 U.S. 356 (1886) ; Oyler v. Boles, 368 U.S. 448 (1962) .
130 See Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion , 35 Seattle Univ. L. Rev . 795 (2012) ; Timothy Williams, To Avoid Bias in Court, Prosecutors Try Leaving Suspect’s Race out of It , N.Y. Times , June 12, 2019, at A15.
131 Paul Butler, Let’s Get Free: A Hip Hop Theory of Justice 103 (2009).
132 Id . at 105.
133Rhode, supra note 123, at 383.
134 Anthony Alfieri, Community Prosecutors , 90 Cal. L. Rev . 1465 (2002) ; Anthony C. Thompson, It Takes a Community to Prosecute , 77 Notre Dame L. Rev . 321 (2002) .
135 See generally Rhode, supra note 123.
136Fair and Just Prosecution, Promising Practicing in Prosecutor-Led Diversion (2017).
137Ken Armstrong, Conflicting Convictions, New Yorker, Nov. 13, 2017.
138 Gerald E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct , 60 L. & Contemp. Probs. 23, 61 (1997) .
139 Anna Stolley Persky, Prosecution Complex: District Attorneys Are Declining to Defend Controversial State and Federal Laws , ABA J., Mar. 2013, at 15, 17 (quoting Thomas Breen).
140 Rose Corrigan, Up Against a Wall: Rape Reform and the Failure of Success 99 (2013); Deborah L. Rhode, What Women Want: An Agenda for the Women’s Movement 125 (2014) ( discussing public attitudes that impede conviction).
141 For context, see Rhode, supra note 140, at 118.
142 Jeffrey Bellin, What We Should Learn from Garner and Ferguson Cases , CNN, Dec. 6, 2014; Jay Sterling Silver, Fixing the Conflict of Interest at the Core of Police Brutality Cases , Wash. Post , Dec. 4, 2014; but see Colin Taylor Ross, Despite What Many Reformers Believe, Special Prosecutors Will Only Weaken Police Accountability , Wash. Post , Apr. 17, 2016.
143 Isaac Lara, Shielded from Justice: How State Attorneys General Can Provide Structural Remedies to the Criminal Prosecutions of Police Officers , 50 Colum. J.L. & Soc. Probs. 551 (2017) .
144Robert Kennedy’s multi-year effort to jail labor leader James Hoffa is a commonly cited case in point. It is described in detail in Jack Goldsmith, In Hoffa’s Shadow (2019).
145 H. Richard Uviller, The Virtuous Prosecutor in Quest of an Ethical Standard: Guidance from the ABA , 71 U. Mich. L. Rev. 1145 (1973) .
146 This problem is based on a highly publicized 2007 incident. Bennett L. Gershman & Joel Cohen, No Gatekeeper of Justice , Nat’l L.J. , Feb. 19, 2007, at A22 (quoting Michael Nifong, the prosecutor in the rape case involving Duke lacrosse players); see also Stuart Taylor, Jr. & KC Johnson, Until Proven Innocent (2007); Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to ‘Do Justice ’, 76 Fordham L. Rev . 1337 (2007) .
147 Persky, supra note 139, at 15, 17. Ultimately, the Seventh Circuit struck down the law. See Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) .
148 Benjamin Weiser, Mixed Motives Seen in Prosecutor’s Decision to Release Ferguson Grand Jury Material , N.Y. Times , Nov. 25, 2014, at A16; Julie Bosman et al., Amid Conflicting Accounts, Trusting Darren Wilson , N.Y. Times , Nov. 25, 2014, at A1; Professors Fagan and Harcourt Provide Facts on Grand Jury Practice in Light of Ferguson Decision , Colum. Law Sch. , https://www.law.columbia.edu/ media_inquiries/ news_events/ 2014/ november2014/ Facts-on-Ferguson-Grand-Jury .
149Bennett L. Gershman, Threats and Bullying by Prosecutors, 46 Loy. U. Chi. L.J. 327 (2014) (citing United States v. DeMarco, 550 F.2d 1224, 1227–28 (9th Cir. 1977)).
150 This problem is adapted from Errol Morris’s 1988 documentary film The Thin Blue Line.
151 See generally Markus Surratt, Comment, Incentivized Informants , Brady, Ruiz, and Wrongful Imprisonment: Requiring Pre-Plea Disclosure of Material Exculpatory Evidence , 93 Wash. L. Rev . 523, 538 (2018) .
152 See Bazelon , supra note 119, at 191.
153 David Luban, Are Criminal Defenders Different? , 91 Mich. L. Rev. 1729, 1737 (1993) .
154 See Stanley Z. Fisher, The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England , 68 Fordham L. Rev . 1379 (2000) .
155 Bazelon , supra note 119, at 263–66 (citing Jenia I. Turner & Allison D. Redlich, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison , 73 Wash. & Lee L. Rev . 73 (2016) ).
156Laural Hooper et al., Fed. Judicial Ctr., A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases 16 (2011).
157Bazelon, supra note 119, at 266.
158Id.
159 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) ; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) .
160 Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science , 309 Science 892, 893 (2005) .
161 See generally Nat’l Acad. of Sci., Strengthening Forensic Science in the United States: A Path Forward (2009). Among its various proposed reforms, the report encouraged policymakers to tighten laboratory standards and remove laboratories from the control of law enforcement agencies.
162Id. at 107–08.
163 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009) (citing Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions , 95 Va. L. Rev. 1, 14 (2009) ).
164 Meehan Crist & Tim Requarth, Forensic Science Put Jimmy Genrich in Prison for 24 Years. What if it Wasn’t Science , T he Nation , Feb. 1, 2018.
165 Jane Campbell Moriarty, “Misconvictions,” Science, and the Ministers of Justice , 86 Neb. L. Rev. 1, 7 (2007) . Beyond that, in 2015, the DOJ and FBI acknowledged that federal forensic examiners had given false or exaggerated testimony regarding hair matches in scores of trials from 1972 to 2000, tainting hundreds of convictions, including the trials of criminal defendants who have been executed. Spencer S. Hsu, FBI Admits Flaws in Hair Analysis Over Decades , Wash. Post , Apr. 18, 2015.
166 Moriarty, supra note 165, at 7 – 10.
167 Id . at 28 .
168Innocence Staff, Informing Injustice: The Disturbing Use of Jailhouse Informants, Innocence Project, Mar. 6, 2019, https://www.innocenceproject.org/informing-injustice/ (reporting that jailhouse informant testimony was utilized “in nearly one in five of the 364 DNA-based exoneration cases”).
169 Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts , 76 Fordham L. Rev . 1413, 1449 (2007) .
170 Id . at 1450 .
171 Commonwealth v. Baranyai, 442 A.2d 800, 801 (Pa. Super. Ct. 1982) .
172 Ortiz v. State, 356 N.E.2d 1188 (Ind. 1976) .
173 Johnson v. State, 453 N.E.2d 365, 368 (Ind. Ct. App. 1983) .
174 Smith v. State, 516 N.E.2d 1055, 1064 (Ind. 1987) .
175 The Use of Scriptures . . . , Nat’l. Law J . , Mar. 20, 2000, at A6.
176 Cargle v. Mullin, 317 F.3d 1196, 1222 – 23 (10th Cir. 2003) , with some minor alterations.
177 Radley Balko, End the Use of Jailhouse Informants , Wash. Post ., May 8, 2015.
178 295 U.S. 78, 88 (1935) .
179Idaho Rules of Prof’l Conduct, R. 3.8(g).
180Id. R. 3.8(h).
181 Am. Bar Ass’n, Chart of Adoption of Rule 3.8(g) and (h) (Sept. 2017), https://www.americanbar.org/ content/ dam/ aba/ administrative/ professional_responsibility/ mrpc_3_8_g_h.pdf (reporting that, as of September 2017, only seventeen states had adopted 3.8(g) and (h), either as written or in modified form).
182Idaho Rules of Prof’l Conduct, R. 3.8, cmt. 9.
183 Id. ; see also Ronald D. Rotunda, Professional Responsibility 256–57 (8th ed. 2008).
184 David Luban, The Conscience of a Prosecutor , 45 Val. U. L. Rev . 1, 24–25 (2010) .
185 Scheck et al ., supra note 34, at 175; accord Nat’l Registry of Exonerations, supra note 71 (reporting that official misconduct played a role in 70 of the 166 confirmed exonerations in 2016).
186 Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles , 8 Va. J. Soc. Pol’y & L . 305, 308–09 (2001) .
187 In one study of 1,283 New York cases alleging prosecutorial misconduct, and 277 finding reversible error, none resulted in discipline. APR Panelists Examine Why Prosecutors Are Largely Ignored by Disciplinary Offices , 22 ABA/BNA Law. Manual on Prof. Conduct 90 (2006) (citing study by the Center for Public Integrity); Bruce Gordon & the Ctr. for Pub. Integrity, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors Accused of Misconduct (2003) (finding only forty-four cases of prosecutorial discipline since 1970); Fred Zacharias, The Professional Discipline of Prosecutors , 79 N.C. L. Rev. 721 (2001) (finding only about 100 reported cases of disciplinary action against prosecutors in the last century); Mike Zapler, State Bar Ignores Errant Lawyers , San Jose Mercury News , Feb. 12, 2006, at A1 (finding only one out of 1,500 California bar disciplinary actions over five years involving prosecutorial misconduct).
188 See e.g., United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (suppression); United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (dismissed); Turbin v. Ariz. Superior Court, 797 P.2d 734 (Ariz. Ct. App. 1990) (conflict).
189 Stanley J. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework , 15 Am. J. Crim. Law 197, 205 (1988) ; Robert L. Gershman, The Prosecutor’s Duty to Truth , 14 Geo. J. Legal Ethics 309, 350 (2001) .
190 John Thompson, The Prosecution Rests, But I Can’t , N.Y. Times , Apr. 9, 2011, at WK11. For more on the case, see Vivian Berger, No Recompense for John Thompson’s Stolen Years , Nat’l L.J. , June 20, 2011.
191 Alex Kozinski, Criminal Law 2 .0, 44 Geo. L.J. Ann. Rev. Crim. Proc . 111 , viii (2015) ; Andrew D. Goldsmith & John F. Walsh, Letter to the Georgetown Law Journal (Nov. 4, 2015), http://georgetownlawjournal.org/files/2015/11/DOJ-Response-to-Kozinski.pdf .
192 Of course, Alex Kozinski is not above reproach. See Niraj Chokshi, Federal Judge Alex Kozinski Retires Abruptly After Sexual Harassment Allegations , N.Y. Times , Dec. 18, 2017.
193 Jim McGee, War on Crime Expands U.S. Prosecutor’s Powers: Aggressive Tactics Put Fairness at Issue , Wash. Post , Jan. 10, 1993, at A1, 36.
194 David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson, 121 Yale L.J. Online 203 (2011) .
195 Bazelon , supra note 119, at 259–260 (quoting Keenan et al., supra note 195, at 222).
196 Jason Kreag, The Brady Colloquy , 67 Stan. L. Rev. Online 47, 47 (2014) .
197 Kozinski, supra note 191.
198 Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct , 42 U.C. Davis L. Rev. 1059, 1067–68 (2009) (criticizing the frequent judicial practice of not identifying prosecutors by name).
199 United States v. Lopez-Avila, 678 F.3d 955, 956–57 (9th Cir. 2012) .
200 John H. Langbein, Torture and Plea Bargaining , 46 U. Chi. L. Rev. 3, 20 (1978) .
201 Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract , 101 Yale L.J. 1909, 1911 (1992) . For disputes about the frequency of pleas by innocent defendants, see John G. Douglass, Fatal Attraction: The Uneasy Courtship of Brady and Plea Bargaining , 50 Emory L.J. 439, 489 (2001) .
202 Stephen J. Schulhofer, A Wake-Up Call from the Plea-Bargaining Trenches , 19 L. & Soc. Inquiry 135, 137 (1994) .
203 Frank Easterbrook, Plea Bargaining as Compromise , 101 Yale L.J. 1969 (1992) .
204 Douglass, supra note 201; Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff , 55 Stan. L. Rev. 29, 35 (2002) .
205 Rule 3.6 , cmt. 1.
206 For helpful discussion, see Peter A. Joy & Kevin C. McMunigal, The Ethics of Talking to the Media , Crim. Just ., Winter 2014, at 17, 22.
207 Emily Bazelon, George Zimmerman Needs a Good Lawyer, Slate, Apr. 11, 2012.
208Monroe H. Freedman & Janet Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum, 29 Stan. L. Rev. 607, 616–19 (1977).
209 David Barstow & Duff Wilson, Prosecutor in Duke Case Faces Ethics Complaint , N.Y. Times , Dec. 29, 2006, at A10 (quoting Nifong).
210 Anna Gorman, Lawyer in Dog-Attack Case May Be Cited , L.A. Times , Mar. 8, 2002, at B1 (quoting San Francisco district attorney Terence Hallinan in a widely-publicized dog mauling prosecution).
211 Jeff Coen et al., Blagojevich Arrested , Chi. Trib. , Dec. 10, 2008; Eric Zorn, Fitzgerald Lays “Lincoln’s Grave” Assertion to Rest , Chi. Trib. , May 27, 2012; see also Ann Southworth & Catherine L. Fisk, The Legal Profession: Ethics in Contemporary Practice 376 (2014).
212 Joshua C. Polster, From Proving Pretext to Proving Discrimination: The Real Lesson of Miller-El and Snyder, 81 Miss. L. Rev. 491, 502 (2012) ; see also Ronald F. Wright et al., The Jury Sunshine Project: Jury Selection Data as a Political Issue , 2018 U. Ill. L. Rev . 1407 (describing “remarkable” racial disparities in use of peremptory strikes by prosecutors and defense attorneys in North Carolina felony trials in 2011).
213 Thomas Ward Frampton, What Justice Thomas Gets Right About Batson, Essay, 72 Stan. L. Rev. Online 1, 5 (2019) (citing Thomas Ward Frampton, The Jim Crow Jury , 71 Vand. L. Rev . 1593, 1633–35 (2018) and Wright et al., supra note 212, at 1430–31).
214 Nina Totenberg, Supreme Court Takes on Racial Discrimination in Jury Selection , NPR , Nov. 2, 2015.
215 Id .
216Parker Yesko, Why Don’t Prosecutors Get Disciplined?, APM Reports (Sept. 18, 2018), https://www.apmreports.org/story/2018/09/18/why-don’t-prosecutors-get-disciplined.
217 Carey Goldberg, Simpson Again, Race Again , N.Y. Times , Sept. 29, 1996, at E4.
218 Hernandez v. New York, 500 U.S. 352, 356 (1991) .
219 Brief of Respondent on Writ of Certiorari to the Superior Court of Butts County, Georgia at 1–2, Foster v. Chatman, 136 S. Ct. 1737 (2016) ( No. 14–8349), 2015 WL 5302540 ; see also Editorial, Excluding Blacks from Juries , N.Y. Times , Nov. 2, 2015, at A22.
220 Brief of Respondent, supra note 219, at 20.
221 Foster v. Chatman, 136 S. Ct. 1737 (2016) .
In his 1836 “Resolutions in Regard to Professional Deportment,” David Hoffman proposed the following prohibition against conflicts of interest: “If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist” (Resolution VIII). Yet the 19th century bar was not uniformly opposed to representing conflicting interests. A Georgia lawyer, criticized by acquaintances for representing the plaintiffs one day in a lawsuit and the defendant the following day, replied, “Consistency, thou art a jewel! I am not that jewel.” 1 Even a lawyer as prominent as Daniel Webster represented several merchants against a debtor in 1805 while simultaneously representing that debtor in suits to collect overdue notes. 2
Today, the legal profession has the most elaborate conflict of interest regulations of any profession. Conflicts are among the most commonly litigated questions in legal ethics, and the organized bar has frequently debated the contours of the conflict of interest rules, and often amended them. 3
Why are conflicts of interest such an integral feature of American legal practice? One reason involves the size of private law firms and their organizational clients, together with their many branch offices. The larger the law firm, the greater the possibility of actual, attenuated, or inadvertent conflicts. Similarly, specialization in legal practice within and among firms has generated greater potential for simultaneous or successive representation of competing interests. The more technically complex the matter, the greater the premium placed on prior expertise, and the greater the likelihood that clients on all sides will seek an attorney who has had some previous involvement with the general subject-matter. So, too, lateral mobility among lawyers has led to an increase in circumstances that permit vicarious disqualification of colleagues under a doctrine that attributes one lawyer’s conflicts to others in the firm. Competition for clients can lead lawyers to accept work in the conflict-of-interest “gray zone” that turns out to be less gray than they thought.
480Although conflicts can arise in a wide variety of contexts, the three core situations involve: (1) representing multiple clients at the same time whose interests conflict; (2) representing one client against a former client in related matters; and (3) representing clients whose interests conflict with those of the attorney. These are, respectively, the problems of concurrent (or simultaneous) representation of conflicting interests, successive representation of conflicting interests, and lawyer-client conflicts of interest.
Several key features of conflicts doctrine have also create the danger of conflicts of interest. First, mentioned above, is the doctrine of vicarious or imputed conflict of interest, which, under Rule 1.10, attributes lawyers’ conflicts to their partners and associates unless those conflicts arise from purely personal interests of the lawyer. This means that a single lawyer’s conflict of interest can disqualify hundreds of colleagues, unless the rules permit the conflicted lawyer to be screened from others in the firm and the required screening procedures are followed. The current Rule 1.10 allows a lawyer joining a new firm to be screened from cases in which the lawyer had previously represented adverse parties.
Imputed conflicts are particularly prevalent in large law firms. If a firm includes hundreds of lawyers who represent thousands of clients, it is quite likely that some member of the firm has represented a current client’s former adversary at some time, which raises successive representation issues. It is also increasingly possible that other attorneys in the firm—often in a branch office in another city—are providing unrelated services for that adversary at the same time, raising concurrent representation issues. Even forty years ago, a partner from the Wall Street firm of Sullivan & Cromwell warned, “If the top lawyers from the top 10 firms in New York decided to form their own firm they probably would not be able to represent anyone.” 4
This last remark points to a second singular feature of conflicts doctrine. The most typical remedy for a conflict of interest in litigation is not, as with most ethics rules, lawyer discipline after the fact. Rather, it is the disqualification of the offending attorney before or during the representation. In a typical situation, Plaintiff, represented by Firm X, sues Defendant. Defendant moves to disqualify Plaintiff’s counsel because a lawyer working for Firm X had previously been part of a team assisting Defendant in a related matter. Defendant claims that the lawyer had access to confidential information about Defendant. If the court agrees, Firm X is disqualified. Then Plaintiff must engage new counsel and bring that counsel up to speed in the case. Moreover, if the court is convinced that Firm X lawyers have used confidential information about Defendant, the court will prohibit Firm X from turning 481 its work product over to Plaintiff’s successor counsel, adding further expense and delay.
These two factors—the frequency of the ethical problem in large law firms and a powerful remedy that can be used tactically—help account for the prominence of conflicts. Large firms and their clients are especially likely to possess the resources to pursue satellite litigation, such as motions to disqualify opposing counsel. These motions can run up the adversary’s bill, remove an especially effective antagonist, delay trial, and increase pressures to settle. 5
Facing an epidemic of tactical abuse, the Supreme Court held in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), that trial court decisions denying disqualification motions could not be appealed until after the final judgment. Subsequent cases have held that decisions granting disqualification are also not subject to interlocutory appeal and courts have resisted invitations to provide immediate review, except in extraordinary circumstances.6 Although these decisions have curtailed the strategic uses of disqualification motions, such motions remain an important feature of contemporary practice. Canny clients may “plant” work in law firms in hopes of conflicting them out of representing the client’s adversaries.
It should be noted that conflicts of interest can also be a source of friction within law firms. From the point of view of individual partners in many law firms, there is a strong incentive to be the one bringing in the business: “Finders” or “rainmakers” are critically important to a firm’s economic well-being, and they are rewarded accordingly. Internal politicking among large-firm partners occurs regularly over which client the firm will represent when conflicts of interest preclude representing both. These “conflicts over conflicts” have exacerbated rivalries within firms and occasionally led to significant ethical abuses. 7
Ethical Rules
The Rules’ prohibition on concurrent conflicts of interests—explored below in Section A—is grounded in the twin fiduciary duties of loyalty and confidentiality. Concerns about loyalty extend beyond the particular matter for which the lawyer is retained. Thus, under Rule 1.7(a)(1), a lawyer may not represent a client if the representation would be directly adverse to another client, even if the two matters are legally unrelated, 482 because the effect on attorney-client relationships could be substantial. Even without direct adversity, loyalty concerns still persist. Rule 1.7(a)(2) prohibits a lawyer from simultaneously representing clients as long as “there is a significant risk” that the representation of one will be “materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer,” unless four delineated conditions are met.
By contrast, in matters involving former clients, the lawyer owes continuing duties of confidentiality, but not loyalty, so representation is impermissible only in circumstances where the matters are sufficiently related to potentially threaten a breach of confidences. We explore duties to former clients below in Section B.
Other countries have similar provisions to address conflicts. Unlike the Model Rules, however, European rules generally do not permit clients to waive conflicts. 8 Japan and Great Britain have rules similar to those in the United States, although Japan also does not permit waivers in cases of actual conflict. Australia and New Zealand also prohibit conflicts of interest unless the client gives informed consent. 9
A preliminary word about conflicts of interest before we examine the particular doctrines: Every analysis must begin with the question, “Who is the client?” In some cases, where a lawyer represents an individual, the answer may be straightforward: The client is the person who signed the retainer agreement. Even then, however, complications can arise if someone else (for example, the client’s insurance company) is paying the fees and expects to have some say in the representation. When the lawyer is representing multiple members of a family—for example, by drafting wills for a married couple—the question may be harder still. And a lawyer representing an organization, who reports to members of management, may lose sight of whether the organization or its executives are the client—as illustrated by the Spanier case in Chapter 6, where damaging confusion arose about whether Penn State’s general counsel was representing the university or its president in a grand jury proceeding. In some cases, lawyers playing a mediating role in an organization or among parties say they are representing “the situation.” In reading the materials in this chapter, keep in mind that “who is the client?” may not always have a straightforward answer.
483A.Concurrent Conflicts of Interest
The following Rule sets out the fundamental prohibition on concurrent conflicts.
Rule 1.7—Conflict of Interest: Current Clients
(a)Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1)the representation of one client will be directly adverse to another client; or
(2)there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b)Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1)the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2)the representation is not prohibited by law;
(3)the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4)each affected client gives informed consent, confirmed in writing.
The Rule is structured in two parts. Section (a) defines what constitutes a concurrent conflict, while section (b) specifies when a lawyer can represent clients despite the concurrent conflict. There are two types of concurrent conflicts: (a)(1) defines conflicts based on direct adversity between two clients, while (a)(2) defines conflicts more broadly based on whether a lawyer’s representation will be “materially limited” by another obligation or interest of the lawyer. We will discuss both types of conflicts, but there are two important points to make here. First, the existence of either type of conflict triggers the Rule. Second, the existence of a concurrent conflict does not automatically preclude representation; rather, it requires that the lawyer meet the requirements of 1.7(b). These determine whether the conflict is “consentable,” meaning that the client can consent to the representation, despite the conflict. If the conflict is consentable, the lawyer must then obtain the client’s informed consent.
It seems obvious that, per Rule 1.7(a)(1), a lawyer cannot represent both sides in an adversarial proceeding, and cases raising that issue are 484 understandably rare. The most common exception is in the area of uncontested divorces, where couples may want to save money by hiring only one lawyer, rather than two. If the couple has negotiated a property division, courts will often permit the joint representation if the judge agrees that the property division is fair, provided the two clients have given their informed consent to the arrangement. 10
Even in the uncontested divorce context, however, dangers can arise—for example, if one spouse has concealed assets from the other. 11 Amicable divorces do not necessarily stay amicable. What if, during the pendency of the divorce, amity unravels because one spouse discovers that the other has been having an affair or one spouse physically assaults the other? The moment the divorce turns contentious, the lawyer will have to withdraw from representing either spouse. Because divorces are inherently volatile, some courts caution divorcing spouses against representation by a single lawyer, and some prohibit it.
Direct adversity can arise in corporate representation, too. In a well-known white-collar case, United States v. Bronston , 658 F.2d 920 (2d Cir. 1981) , a New York City lawyer and state senator, Jack Bronston, wished to represent a famous financier in a bid for a municipal contract. Bronston was told by his firm that he could not represent him, because the firm was already representing the financier’s competitors bidding for the same contract. Reluctant to give up his client, Bronston assisted the financier and concealed the representation. His actions turned out to be not only an ethical violation, but a crime: Bronston was convicted of two counts of mail fraud, one for each of the letters he wrote on the financier’s behalf.
But the prohibition on a representation directly adverse to another client is not restricted to cases where the two clients are on opposite sides of the same legal matter. Rule 1.7 prohibits any concurrent representation of one client against another, even in unrelated matters. Thus, a lawyer who represents A in business matters cannot represent B in a suit against A resulting from an automobile accident, even though the two matters are entirely unrelated. The rationale is to avoid perceived disloyalty. As Comment 6 to Rule 1.7 explains: “The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively.” 12
485Remember, however, that rules against concurrent conflicts are not generally absolute. It is true, importantly, that a lawyer can never represent one client against another “in the same litigation or other proceeding before a tribunal”—a blanket ban justified by “the institutional interest in vigorous development” of each client’s position.13 But otherwise, Rule 1.7(b) permits representation if certain conditions are met. Namely, representation is permissible as long as: the lawyer reasonably believes that she will be able to provide competent and diligent representation to all parties; the representation is not prohibited by other law; and each affected client gives informed consent, confirmed in writing.14 The terminology section of the Rules (Rule 1.0(e)) explains: “ ‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
The usual word for client consent to a conflict is waiver : The client has waived the conflict (or, more precisely, has waived the right to undivided loyalty guaranteed by Rule 1.7(a) ). A conflict that violates any of the conditions for permissible concurrent representation is said to be non-consentable or non-waivable . Frequently, a lawyer or law firm will ask clients to sign an advance waiver of future potential conflicts before accepting the client’s case. We discuss waivers and advance waivers in Section C below.
A positional conflict of interest (sometimes called an issues conflict) arises when a lawyer advocates a position on behalf of one client that is contrary to a position being urged by the lawyer or the lawyer’s firm on behalf of another client in an unrelated matter. 15 These conflicts can involve factual or legal questions. An example is the situation in Williams v. State , 805 A.2d 880 (Del. 2002) , where public defender Bernard O’Donnell asked for leave to withdraw from representing defendant Williams on a death penalty appeal because of a positional conflict of interest. O’Donnell explained that he might be forced to argue that the trial judge had erred by stating he was required to give “great weight” to a 10–2 jury vote in favor of imposing the death penalty on Williams. In a pending case involving a different client, O’Donnell had argued in a brief that the Supreme Court was required to give great weight to a 2–10 jury vote against imposing the death penalty. The court agreed that requiring 486 O’Donnell to argue inconsistent legal positions before the same court might limit his ability to advocate for his clients, and excused him. Similar positional conflicts have confronted other public defenders. In the District of Columbia, because only a “handful of trial judges were presiding over these cases, Public Defender Service colleagues found themselves taking inconsistent positions before the same judge” on the constitutionality of sentencing guidelines that helped some clients and harmed others. 16
A related problem, sometimes lumped under the term positional conflict, is what most commentators refer to as “ideological” or “business” conflicts. These involve positions that are likely to offend or adversely affect another client, even though they are not inconsistent with that client’s stated factual or legal position. 17 For example, in one widely publicized case, a large firm withdrew from pro bono representation of New York City in a claim against gun manufacturers because, according to a firm statement, the case posed “certain potential positional conflicts.” However, as several legal experts noted, the firm’s decision seemed to be based on economic, not ethical, concerns. The firm was facing clients’ disapproval, but not because it was advancing legal or factual claims inconsistent with any positions that it was advocating on those clients’ behalf. 18
A threshold question is whether positional conflicts necessarily constitute a breach of ethics. “He is no lawyer who cannot argue both sides of a case,” said Charles Lamb. A legendary illustration is that of Matthew Hale Carpenter, one of the nation’s leading 19th century advocates. He achieved widespread recognition and helped build a thriving appellate practice by arguing for two inconsistent interpretations of the 14th Amendment before the U.S. Supreme Court within weeks of each other. 19
Many contemporary lawyers are equally untroubled by such inconsistencies. Neither the Rules nor its predecessor, the Code of Professional Responsibility, explicitly forbid positional conflicts of interest. Yet, the Rules include provisions that implicitly prohibit such conflicts in two situations. First, if a positional conflict risks the misuse of a client’s confidences, it is impermissible under Rule 1.6. Second, if it would “materially limit” the representation of one or the other client, a positional conflict is impermissible under Rule 1.7(a)(2) . 20
487What would impose a “material” limitation on lawyers’ representation and who should decide? According to Comment 24 to Rule 1.7:
[24]Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.
1.Some ethicists favor a broader prohibition on positional conflicts. But others worry that a broader prohibition might chill firms’ willingness to undertake law reform and pro bono work. The American bar has long pointed with pride to examples of lawyers who, as advocates for paying clients, exploited loopholes in the law, but who later volunteered their efforts to plug these loopholes. 21
2.Borrowing from the example above, if a lawyer exploits a loophole for a client but later volunteers to plug that loophole for a pro bono client, does that constitute an impermissible conflict under Rule 1.7(a)(2)? If knowledge of the loophole comes in part from the paying client, should the lawyer be able to provide a plug?
3.The Rules address problematic questions of lawyer participation in law reform in two rules, 6.3 and 6.4. Rule 6.3 states that lawyers may participate as directors, officers, or members of a legal services organization, “notwithstanding that the organization serves persons having interests adverse to a client of the lawyer.” However, the lawyer may not participate in a decision or action of the organization if doing so creates a concurrent 488 conflict as defined in Rule 1.7. Rule 6.4 permits lawyers to belong to law reform organizations even if the reform may affect a client’s interests.
4.The frequency of business conflicts is hard to gauge. There are almost no reported decisions, and empirical research is sparse. 22 In the only large-scale study, about 40 percent of lawyers were in firms that discouraged pro bono work likely to advance positions inconsistent with client interests or values. 23 Other anecdotal accounts confirm the significance of the problem. As one partner in a Washington, D.C. firm explained:
The point that has to be honestly faced is that . . . most of the firms are being very careful not to step on the toes of their clients’ important interests. They want to avoid economic conflicts or conflicts which would put them in a situation where they could be said to be disloyal to their clients . . . . We have a system under which the law firms represent companies day in and day out, year in and year out, and the firms develop a sense of loyalty and identification with their clients. That’s one of the great problems about the way the Bar is structured. 24
Another lawyer, reflecting on the increasing impact of business clients to his firm, noted that:
[A]s we represent larger and larger institutions, corporations, we are more identified with the establishment. And, therefore, antiestablishment types of lawsuits are bad for us. . . . Well, you lose clients, I mean, you just lose clients . . . . That’s the thing that’s vexing us . . . . I think it hurts us. But it’s reality. 25
5.One disturbing trend emerging in recent years is outside counsel guidelines (“OCGs”). Issued by major corporations, these guidelines restrict retained law firms’ activities, and they define conflicts of interest far more broadly than the “official” definitions in the Rules. For example, Wal-Mart’s OCG states that the company “expects a strong degree of loyalty from its Outside Counsel,” and that “Wal-Mart may conclude that an actual conflict of interest exists if Outside Counsel or Outside Counsel’s law firm represents a significant competitor of Wal-Mart or its subsidiaries or affiliates.”26 This definition of “actual conflict of interest” contrasts sharply with Comment 6 to Rule 1.7, which explains that “simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, 489does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.”
Wal-Mart also requires outside counsel to alert the company of “potential conflicts of a philosophical or policy-driven nature that may compromise a position taken by the Company,” where a potential conflict is “a law firm’s representation of a client in a matter, though not actually adverse to Wal-Mart, [that] has the potential of becoming adverse.” Similarly, another company’s OCG warns:
Company has a broad array of business interests. It is important that you be sensitive both to direct conflicts of interest posed by your representation of Company and other clients and more indirect, issue or policy, conflicts that may arise from your firm’s advocacy on behalf of other clients of positions conflicting with Company business interests. We expect to be informed of and consulted with respect to all potential direct and indirect conflicts promptly.27
Are these legitimate requests for information about the risk of emerging conflicts, or attempts by the companies to exert financial muscle in order to muzzle lawyers’ policy advocacy in unrelated matters that the company disapproves of?
Another company’s OCG aims to restrict the legal arguments its outside counsel can make on behalf of other clients:
Even if the ethical rules do not prohibit the Firm from representing such a person or entity, as a partner with Client the Firm agrees not take positions on behalf of other clients that are or may be contrary to Client’s positions on issues affecting the industry.28
Some commentators warn that OCGs that equate positional conflicts with any lawyer action that the company believes might ruffle its business interests threaten lawyer independence, and may make it hard for competitors to obtain legal services. One proposed remedy is an amendment to Rule 5.6(b), which prohibits lawyers from making agreements that would restrict their practice. (This Rule is treated in detail in Section G.3, infra.) The proposed amendment would prohibit a lawyer from offering or making “an agreement in which a restriction on the lawyer’s right to practice is part of the terms of engagement of a lawyer by a client.”29 Note that this amendment would not only prohibit law firms from accepting corporate clients under restrictive terms, but it would also prohibit inside counsel from requiring compliance with restrictive OCGs. Would this work?
Not all OCGs concern business conflicts. Wal-Mart’s OCG includes this directive: “Wal-Mart is deeply committed to diversity, both internally and in its Outside Counsel hiring practices. . . . We expect Outside Counsel to make 490a good faith effort to recruit, retain, and promote qualified women and minorities.” A Mexican-American relationship partner at one of Wal-Mart’s largest outside law firms describes Wal-Mart’s diversity efforts as “a giant leap for all lawyers of color.”30 Are directives to law firms about their hiring practices different in principle from directives about business conflicts?
6.Nearly lost amid its head-spinning twists and turns, the investigation by Special Counsel Robert Mueller into Russian interference in the 2016 presidential election revealed potentially thorny positional conflicts for the prestigious law firm Skadden, Arps, Slate, Meagher & Flom. Skadden had been retained by the Government of Ukraine (GoU) to produce a supposedly independent report (released in 2012) on the prosecution and imprisonment of former Ukrainian Prime Minister Yulia Tymoshenko, allegedly for abuse of power and corruption. Tymoshenko had been a fierce critic of Prime Minister Viktor Yanukovych, and both the United States and the European Union condemned Tymoshenko’s imprisonment as a politically motivated persecution of Yanukovych’s political enemy. The pro-Russian Yanukovych government was a client of U.S. political operative Paul Manafort, who proposed that the GoU retain Skadden to write the report in an effort to burnish the GoU’s image. The Skadden report defended the legitimacy of the Tymoshenko prosecution, stating that the evidence supported conviction and that there had been no due process violations. The report was used by Ukrainian lobbyists, led by Manafort, in a public relations campaign to generate U.S. support for Yanukovych and undermine Tymoshenko.
What was not known at the time, but came out when Manafort pleaded guilty to charges of conspiracy in relation to his Ukraine lobbying, was that a Skadden partner working on the report knew information that undermined the report. In November 2012, as Manafort was preparing to deploy the report, that Skadden partner told him privately (in his own name rather than that of the firm) that the evidence of Tymoshenko’s criminal intent was “virtually non-existent”—and that it was unclear that Tymoshenko had done anything her predecessors had not also done.31 Neither of those observations appeared in the report. Next, the firm also agreed to work with the GoU’s prosecutors in a new prosecution of Tymoshenko on additional charges—“Project 2.” The firm lawyers working on Project 2 included some of the same lawyers involved in preparing the Report.32
Did Skadden have a positional conflict of interest here? More specifically, was Skadden’s production of a supposedly objective report “materially limited” by its engagement by the GoU in connection with the second Tymoshenko prosecution—and, of course, by its knowledge that Manafort and the GoU wanted the report to favor the GoU?33 A Skadden 491partner wrote to Manafort in August 2012, “I am concerned that [the Law Firm’s] activity in Project 2 might surface before the Report comes out, and that would do enormous damage to the credibility of [the Report].”34 Could the firm exercise independent legal judgment in writing the report while also receiving payment from the Ukraine and others to help prosecute a second case against Tymoshenko? The engagement agreement between Skadden and the GoU for writing the report stated that firm “will be free to reach its own conclusions based on its own independent work.”35 And yet, Skadden received only $12,000 from the GoU for 950 hours work ($12.60 an hour), with the balance of its fees paid by a certain unnamed “Business Person-1,” an arrangement that calls into question how independent the report was.36 Furthermore, “certain Law Firm attorneys worked with Manafort to identify a public relations firm to assist the GoU with developing a public relations strategy centered on the Report.”37
The matter did not end well for the law firm. In the wake of the Mueller investigation, Skadden paid $4.6 million in Ukraine-related legal fees to the U.S. Treasury to settle a DOJ complaint that it had acted as an unregistered lobbyist for the Ukrainian government.38 In the DOJ settlement agreement, Skadden admitted that “false or misleading oral or written statements [were] made by a former Partner of the Law Firm on the Law Firm’s behalf.”39 The report’s lead author, partner Gregory Craig, resigned from Skadden. He was subsequently charged and later acquitted for lying to federal officials in connection with the Ukraine matter.
The law firm of Barnes & Chippe employs over 400 lawyers in its New York office. The following situations have arisen within the last six months.
a)Barnes & Chippe, which represents major chemical and real estate development corporations, has instituted a policy against firm lawyers sitting on boards of public interest environmental groups such as the Natural Resources Defense Council, or providing pro bono assistance to those groups. In an intraoffice memorandum, the management committee explained that such memberships would create conflicts of interest because of the potential misuse of client confidences about controversial environmental decisions. The memorandum mentions that the policy evolved from a request by one of the firm’s most important clients.
b)A senior associate at Barnes & Chippe has done pro bono work for several anti-abortion groups, including authoring an amicus brief for 492 a right-to-life organization in a Supreme Court case. A new partner in the firm, who sometimes works with this senior associate, has different views on reproductive rights. She offers her services to a reproductive rights advocacy organization to provide pro bono assistance on cases challenging abortion restrictions. A managing attorney in that organization thanks her for the offer, but indicates that the organization does not collaborate with lawyers in reproductive rights work when other members of their firm have represented right-to-life organizations. The organization wishes to avoid conflicts of interest and confidentiality concerns. The partner subsequently proposes that the firm establish a committee to screen pro bono cases and to put “controversial” issues to a firm vote before a lawyer undertakes representation.
c)Barnes & Chippe has an active mergers and acquisitions department. In one case, Barnes & Chippe represents corporation P in its hostile takeover attempt to win control of corporation Q. Corporation Q has adopted “poison-pill” bylaws that would make the takeover impossible, and Barnes & Chippe is arguing before the Delaware Chancery Court that Q’s bylaws are illegal and contrary to public policy. At the same time, Barnes & Chippe is defending corporation X against a takeover attempt by corporation Y. X has poison-pill bylaws very similar to those of corporation Q. In this case, a different team of Barnes & Chippe lawyers is arguing before the same Delaware court that X’s poison-pill measures are perfectly legal. There is no connection between X, Y, P, and Q.
d)Barnes & Chippe represents a small biotechnology company in its challenge to a federal regulatory decision. That decision prevents the company from marketing a new product, a genetically-engineered micro-organism that “eats” oil slicks, breaking them down into environmentally harmless components. Ecoclean, one of Barnes & Chippe’s regular clients, is an environmental disaster-control firm that derives much of its income from cleaning up oil spills by conventional methods. Ecoclean protests to Barnes & Chippe that if the biotechnology company succeeds in bringing its product to market, Ecoclean may lose millions of dollars, and perhaps may even be put out of business. Ecoclean’s general counsel sees a conflict of interest in the representation and threatens to take the company’s legal work elsewhere.
Which, if any, of these situations represent genuine conflicts of interest? Which, if any, represent improper interference with an attorney’s independence?
References: Rules 1.7, 5.4, 8.4.
3.Concurrent Conflicts in Particular Practice Settings
In this Section, we consider three contexts where concurrent conflicts often arise. Specifically, we consider concurrent conflicts in the 493 context of: (1) representation of family members, (2) corporate practice, and (3) criminal defense practice.
Family and trust and estates l awyers often represent multiple clients in the same matter when their interests are not adverse. For example, a couple may retain a lawyer to assist with the adoption of a child, or a couple may go to a lawyer to draw up their will. In such cases, the clients’ interests usually align and it would be unreasonable and often impractical to require each family member to retain separate counsel. Notice that under Rule 1.7(a)(2) there is no concurrent conflict of interest if the risk of conflicting interests that would hamper legal representation is not “significant.” Lawyers must analyze those risks before undertaking joint representation.
Yet even the most innocuous multiple representation poses a potential conflict of interest if the parties’ interests fall out of alignment. Consider the Case of the Unwanted Will, described by Thomas Shaffer in the following excerpt.
Thomas L. Shaffer, “The Legal Ethics of Radical Individualism”
65 Texas Law Review 963, 963–70, 976–78 (1987) .
There’s a magnifying glass all cracked and broken, and when you look at broken things through the lens you’d swear they’d turned whole again.
—Anne Tyler
Most of what American lawyers and law teachers call legal ethics is not ethics. Most of what is called legal ethics is similar to rules made by administrative agencies. It is regulatory. Its appeal is not to conscience, but to sanction. It seeks mandate rather than insight. I argue here that what remains and appropriately is called ethics has been distorted by the weaker side of an old issue in academic moral philosophy. This “weaker side” rests on two doctrines: first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. The influence of this philosophical position deprives legal ethics of truthfulness and of depth. . . .
I.The Ethical Context
Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. Those in contemporary ethics who concentrate on the importance of the truthful account argue first that fact and value are not separate—that stating the facts is, as Iris Murdoch put it, a moral act, a moral skill, and a moral art; and second, that organic communities of persons are prior in life and 494 in culture to individuals—in other words, that the moral agent is not alone. . . .
In the practice of estate planning, for example, the facts that are available for moral description are death and property: property seen in the context of mortality, death seen in the context of owning things. . . .
What reconciles death with the ownership of property is the family. The family is the lens through which we understand death as the death of an owner, and property as something owned by dead people. The family is the cracked magnifying glass that shows how things broken by discord and death are whole. The family is normally why people bother with estate planning—“normally” in the sense that, but for the family, estate planning would not be a legal subject. The family is the cultural focus for the realization that estate planning is a worthwhile thing for people to do, because it reflects the hope that none of us will die alone. The human fact that is prior to the moral agency of which moral philosophy usually speaks is the family; the moral art of description in the legal ethics of estate planning is the skill to describe a family. . . .
II.The Case of the Unwanted Will
I use, in teaching legal ethics, a series of quandaries that were posed in the American Bar Association Journal in 1979. One of these quandaries describes John and Mary, a middle-aged couple with adult children. John and Mary want their wills drafted before beginning a vacation trip abroad. Based on John’s instructions, the lawyer prepares a set of parallel wills, each leaving all property to the surviving spouse, or, if both are dead, to their children in equal shares. On a second visit to the law office, the lawyer presents the prepared wills to the couple, and John executes his:
[T]he lawyer [then] suggests to John that he would like to be alone with Mary before she signs. John withdraws to another office. The lawyer asks Mary if the will is as she would have made it had her husband not been present at the conference and if the will were to be secret from her husband. She says no, that the will as drawn contains several provisions that are contrary to her wishes, and that she would change if her husband were not to know the ultimate disposition of her estate. However, she says that she would not be willing to precipitate the domestic discord and confrontation that would occur if her husband were to learn that she had drawn a will contrary to his wishes and in accordance with her own desires. 40
You could say that the problem never would have arisen had the lawyer not talked to Mary alone. That description trivializes the problem, but many law students pose the quandary and the solution in just those terms. From their viewpoint, . . . [the problem is best analyzed in four steps]. First, a lawyer’s proper employment is by or for an individual. 495 Second, employment by or for more than one individual is exceptional. Third, as a consequence, multiple party employment is necessarily superficial. Finally, the means for protecting the superficiality (or, if you like, the means for protecting the principle that employment is ordinarily and properly by or for individuals) is ignorance of any facts known to one of the individuals but not to the other.
It follows from this typical analysis that the lawyer’s moral mistake was in talking to Mary alone. Otherwise, Mary’s secret intention never would have come to his attention; her thoughts would be hidden, and that is appropriate because John’s thoughts are hidden. Now that the lawyer has talked to Mary alone, he is in an impossible situation: he cannot allow John to board the plane with the mistaken belief that Mary agreed with what “they” had decided. Nor, for the same reason, can he help Mary to make a different will. And, of course, he cannot allow Mary to execute a will that does not do what she wants it to do.
This principled analysis of The Case of the Unwanted Will fails because of what is prior to analysis: the moral art of description. The failure is sad and, I think, corrupting. It is corrupting, first, because it rests on an untruthful account of what is going on. What is present in the law office is a family, and this one-lawyer-for-each-person way of first seeing a moral quandary in this situation and then resolving the quandary with the ethics of autonomy (the ethics of aloneness) leaves the family out of the account. The analysis looks on Mary as a collection of interests and rights that begin and end in radical individuality. Her affiliation with her husband, and with the children they have made and reared, is seen as a product of individuality(!), of contract and consent, of promises and the keeping of promises—all the consensual connections that lonely individuals use when they want circumstantial harmony. The employment of the lawyer is a result, then, of the links, the promises, the contract, the consent, and the need for circumstantial harmony. The family in the office is there only as the product of promise and consent. It is relevant to the legal business at hand only because the (radical) individuals, each in momentary and circumstantial harmony with one another, want it to be. The promise and the consent create the family.
This description is offered by the legal ethics of radical individualism. It is sad, corrupting, and untruthful. An alternative argument is that the family created the promises, the contract, the consent, and the circumstantial harmony—not the other way around. The family is not the harmony; it is where the harmony (and disharmony) comes from. A truthful description of The Case of the Unwanted Will is that the lawyer’s employer is a family. I suspect that that proposition will sound unusual in legal ethics, but my argument would be ordinary in other contexts. It treats, sees, and describes the family the way families are treated, seen, and described in the stories we tell, in the television commercials we watch, in the comics, and in our religious tradition. . . .
496The lawyer in The Case of the Unwanted Will, for example, did not err in turning his attention to Mary, in John’s absence. (Nor would it have been a mistake to turn his attention to John, in Mary’s absence; if evenhandedness is important, it would have been more evenhanded to talk privately with each of them.) The deep things to be found out about John and Mary, in particular the deep things involved in their will making, are family things. Inquiring into deep family things is not only tolerated, but it is required by common representation, because the client is the family. Any other description is incomplete and, thus, untruthful and corrupting. If an adequate account of what is going on in the family (to the extent that it has to do with their will making) requires talking to either or both parents alone, then talking to them alone is appropriate. If the family is well represented, it (that is, each person in it) will learn how to take Mary’s purposes into account, because Mary is in the family.
. . . [S]uppose in The Case of the Unwanted Will some further facts about Mary’s purposes. One of the couple’s sons, Henry, was married for ten years to, and is now divorced from, a woman named Susan. Henry and Susan had children who now live with Susan, and Henry lives alone. John and Mary, however, remain fond of Susan and, despite the divorce, continue to be friendly with her. The lawyer’s questions to John and Mary have brought this affection to the surface, but John, as is typical, thinks of property and family together, and Susan no longer is in the family. During the joint interview, Mary sits silent while John says that they want “Henry’s share” to go to Henry and, if Henry is dead, to his children. In the cases of the other children of John and Mary, says John, the child’s share is to go to the child’s spouse. What Mary says to the lawyer when they are alone, however, is that she wants her will to provide for Susan. Mary wants some of her family’s property to be available for Susan, after Mary dies, when what is left of Mary will be in her family. Mary will be there, not because of a fictional notion about ownership, but because Mary did not die alone.
It is interesting to note how the narrative force of that statement about Mary’s property changes as the case is described differently. Does Mary dispose of her property, her family’s property, her husband’s property, or her children’s property? The point is that seeing and saying are moral and legal acts, and moral and legal arts. The law is a language; legal authority will support any one of these ways of speaking of this property, and any of the statements is a moral judgment, as, indeed, the word “property” is a moral judgment. . . .
My argument is that [the lawyer] has begun to do a good thing. It is a good thing because it is a more truthful description of the reality that is the goal of the lawyer’s work. . . . The estate planning issue, therefore, is whether this family is equal to the truth of what it is.
4971.The first thing to observe about Shaffer’s analysis is that his critique focuses on the morality underlying conflicts doctrine, rather than the Rules. Shaffer criticizes the law of lawyering for excessive individualism, which ignores the many contexts in which we do not think of ourselves as individuals, but as members of a cohesive group like a family. In Shaffer’s view, to reduce a family to a collection of individuals simply misdescribes what families are, or at least how many families view themselves. Do you agree?
2.In analyzing the Case of the Unwanted Will, Shaffer writes that, from an individualist point of view:
Now that the lawyer has talked to Mary alone, he is in an impossible situation: he cannot allow John to board the plane with the mistaken belief that Mary agreed with what ‘they’ decided. Nor, for the same reason, can he help Mary to make a different will. And, of course, he cannot allow Mary to execute a will that does not do what she wants it to do.
Do you agree with these three judgments about the lawyer’s obligations? What is their basis in the Rules? What recommendation should the lawyer make to Mary?
3. Must the lawyer disclose to John what Mary has told him? May he disclose information that Mary requests him to keep confidential? What if John asks him directly about the conversation with Mary?
If Mary requests that their conversation be kept confidential, must the lawyer withdraw from the representation? May the lawyer withdraw, given that withdrawal is certain to alert John that something unexpected has arisen in the lawyer’s conversation with Mary?
4.According to Shaffer:
Inquiring into deep family things is not only tolerated, but it is required by common representation, because the client is the family . . . . [M]y argument is that [the lawyer] has begun to do a good thing. It is a good thing because it is a more truthful description of the reality that is the goal of the lawyer’s work. . . . The estate planning issue, therefore, is whether this family is equal to the truth of what it is.
a)Do you agree that the lawyer has done a good thing by getting the family to confront “the truth of what it is”?
b)Suppose the facts are as follows. Mary reveals to the lawyer that, as an unmarried teenager, before she met John, she gave birth to a baby girl, who was subsequently adopted by acquaintances of her parents. She tells the lawyer that she would very much have liked to make a bequest to her daughter. John does not know of the daughter’s existence, and it seems likely both to Mary and to the lawyer that disclosure of this secret now would jeopardize their relationship. Would these facts affect your answers to part (a) or to the confidentiality issues raised in note 2? Would your answer 498 change if Mary instead wanted to make a bequest to someone with whom she had an affair during her marriage?
The Restatement addresses a version of these messy situations through a pair of hypotheticals involving a husband and wife whose wills are being prepared by a lawyer, with each of them leaving most of their property to the other. In the first hypothetical, the husband informs the lawyer, outside of his wife’s presence, that he wants his will to provide for an illegitimate child conceived during an adulterous affair that his wife does not know about. He directs that the bequest be paid out of money his wife believes he plans to leave to a charity—and therefore the secret bequest would not harm her financial expectations or interests, because she would not be getting the money anyway. He does not want his wife to learn about the bequest, the affair, or the child; she would find the knowledge devastating. 41 The second hypothetical is the same as the first, except that the money left to the child “would significantly deplete Husband’s estate, to Wife’s material detriment and in frustration of the Spouses’ intended testamentary arrangements.” 42
The Restatement concludes that in the first hypothetical it would be proper for the attorney to draft the husband’s will as he directs, without informing his wife. Do you agree?
In the second hypothetical, assuming that the husband will not permit the lawyer to inform the wife, the lawyer must withdraw. The lawyer may, in that case, exercise discretion about what to tell the wife: (a) that the lawyer must withdraw for reasons that her husband will not permit the lawyer to reveal; or (b) that the lawyer must withdraw, and that because of information received from her husband she should revoke her recent will; or even (c) enough of the details the husband has told the lawyer that the wife can protect her own interests going forward. 43 How do these options square with the confidentiality provisions in Rule 1.6?
5.In A v. B, 726 A.2d 924 (N.J. 1999), a lawyer representing a husband and wife in drafting their wills learned from another source, after the wills were executed, that the husband had a child out of wedlock. The lawyer wrote to the husband suggesting that he inform his wife, because the terms of the will might allow some of her assets to go to that child if she died before her husband. If the husband failed to make the disclosure, the lawyer warned that he would disclose this sensitive information. The husband sued the lawyer to prevent the lawyer from making the disclosure.
The New Jersey Supreme Court held that the lawyer had discretion to contact the wife and disclose the existence, but not the name, of the husband’s child. The applicable rule, Rule 1.6, created an exception to confidentiality requirements where necessary to “rectify the consequences of a client’s criminal, illegal or fraudulent act.” In the court’s view, the husband’s failure to reveal the child was fraudulent. The court also noted that the parties had signed a conflict waiver which explained that 499 information provided by one spouse might be available to the other. In the court’s view, the “spirit” of the waiver supported the lawyer’s decision.
6.Shaffer places a high value on the family “living in truth.” Consider this response:
Mary’s considered judgment is that ‘living in untruth’ permits the family to function; she does not think that John can ‘handle’ full information. In any event, even if she underestimates John in this regard, she is reluctant to take the risk. It is presumptuous and irresponsible for the lawyer to encourage this family to discover whether (in Shaffer’s words) it is equal to the truth of what it is.
How might Shaffer answer this argument? How would you?
7.Did the lawyer in Shaffer’s Case of the Unwanted Will err by failing to discuss the possibility of conflicts of interest with John and Mary at the beginning of the representation? The ABA Special Probate and Trust Division Study Committee on Professional Responsibility says no. Its recommendations provide that lawyers may presume that the couple is “unified in goals and interests until shown otherwise.” 44 Under these recommendations, if parties subsequently disclose information that they do not want revealed to their spouses, lawyers’ obligations depend on whether or not these confidences are “adverse” to the other spouse’s property interests, as discussed in note 4. Do you agree with this approach? Why shouldn’t a lawyer be required to raise the issue of potential conflicts at the outset of representation?
8.What of family secrets, more generally? Many attorneys are reluctant to inquire too deeply into family matters because of the serious emotional and ethical problems that such inquiries may entail. Lawyers are not therapists. It may therefore be useful to consider the strategies of those who are trained family therapists. These practitioners often receive confidential disclosures from one or more family members: a spouse has had a secret extramarital affair; a child is adopted and doesn’t know it; a son at college is gay and is trying to keep one parent from finding out.
To avoid such difficulties, some therapists recommend a preventive approach. In practice, therapists point out, most such disclosures will not come out of the blue; they will come after a family member has requested a private meeting or has hinted that she has additional information to impart. Given such a cue, therapists should discuss with the individual, couple, or family the problems of special confidences and explore how they should handle the situation. During this discussion, therapists should make clear that if keeping secrets begins to undermine their ability to provide adequate assistance to another family member, they will insist on disclosure, or they 500 will have to terminate the professional relationship. Only after such a discussion can therapists agree to receive confidential information. 45
Would this approach work for lawyers? Families in therapy may be more emotionally fragile than many families who come to lawyers for estate planning assistance. Does this imply that lawyers may take more “responsibility for forcing the situation” than would be prudent for therapists? Or should lawyers be even more reluctant to exert pressure, since they generally lack the therapeutic training that may be necessary to cope with destructive consequences?
9.Professor Russell Pearce argues that it is inappropriately paternalistic for lawyers to impose some single model of the appropriate family on all clients. In his view, such an approach ignores important distinctions in client preferences and power relationships. Rather, Pearce suggests that attorneys should give clients the option of being treated as a marital unit or as individuals after informed discussion. If spouses choose to be treated as a unit, then the lawyer may not keep secrets from either party. 46 What is your view? What obstacles might stand in the way of parties exercising fully informed and voluntary choices?
Shareholder derivative suits against the corporation, as well as corporate officers and directors, raise issues about whether the same lawyer can represent both the corporation and various individual defendants. Consent to joint representation is obviously suspect, because the same corporate officers named as individual defendants (and accused of placing their own interests ahead of the corporation’s) will make the decision about whether the corporation “consents” to joint representation. For that reason, the preferred solution is separate representation unless the plaintiff’s complaint is patently frivolous, seeks only minor relief, or does not charge officers and directors with significant wrongdoing. 47
Analogous problems may arise in cases where a corporation facing potential criminal or civil liability employs counsel to represent both an organization and its employees who may be individually implicated. Such joint representation has the advantages of a unified position, but it also risks potential conflicts. In some cases, the best interest of the company may be a legal strategy that throws the employee under the bus, while in others, the employee’s interests may best be served by reaching an agreement with the plaintiff or prosecutor on terms that harm the company. Obviously, if those risks are evident at the outset of the representation, counsel cannot take on the joint representation, but the conflict may emerge only later in the course of representation. The risks 501 of joint representation tend to fall disproportionately on the employee, who generally is not paying the lawyer’s fee and is not in a position to provide further business. A company may prefer joint representation to “hug the employee close” in cases where it fears that the employee will accept a deal that harms the company, even as the company prepares to scapegoat the employee. 48 Accordingly, commentators have argued for reforms in code provisions and case law to provide more protection for employees in such circumstances, primarily through requirements of special disclosures and independent advice.
Concurrent representation is also widespread in other corporate contexts such as bankruptcy proceedings, where a lawyer who is particularly knowledgeable about the debtor may represent multiple creditors; and transactional planning, where investors and entrepreneurs may rely on a single lawyer to create a corporation or partnership. At a minimum, clients should receive full disclosure, and when the stakes are substantial, independent advice, before they consent to joint representation. 49
1.Are there circumstances in which lawyers for organizational clients should provide a warning that they are explicitly not representing individual officers or employees of the client? Consider the situation of Eduardo Saverin, the original investor and a founding co-owner of Facebook, who was pushed out of the company after he signed a re-incorporation agreement that provided for future dilution of his shares. In a subsequent lawsuit, Saverin claimed that he signed the agreement under the erroneous assumption that co-founder Mark Zuckerberg, co-owner Sean Parker, and the venture capital firm driving the re-incorporation had also agreed to dilute their own shares. A history of Facebook, which includes interviews with Saverin, offers the following account:
Eduardo read through the papers again and again. Part of him knew that these documents were important—that they were legal documents, that signing them was a big step forward for the company—but he felt protected, first because the lawyers were there—Facebook’s lawyers, which meant in his mind that they were his lawyers as well. 50
Assuming that Saverin’s account is accurate, did Facebook’s lawyers err? What, if anything, should they have done differently? In addition to Rule 1.7 , see Rule 1.13(a) and (f) .
5022.Prominent ethicists Anthony Davis, James Jones, and Milton Regan argue that more relaxed rules governing conflicts of interest should apply to sophisticated clients. They define such a client as a “repetitive user” who has had a “reasonable opportunity to obtain the advice of independent counsel of its own choosing (including in-house counsel) or [who] has assets in excess of $25 million,” or who operates in five jurisdictions, or who is a governmental entity with power to consent to waivers of conflicts of interest.
These clients, such ethicists believe, should be allowed to consent to advance waiver of conflicts of interest, including those involving direct adversity, provided that their confidences and secrets are protected by effective screening measures. They further argue that bar ethical rules should allow firms to accept matters adverse to a sophisticated client’s interest without consent if the matter is not substantially related to one for which the firm is currently engaged for the client, as long as the firm (i) holds no material confidential information of the client regarding the new matter, and (ii) provides effective measures to screen the lawyers working on the two matters from each other. 51 What would be the advantages and disadvantages of this approach? Do you think the approach is, on balance, beneficial?
Criminal Defense Practice : Constitutional Concerns
In the context of criminal defense, conflicts of interest when the same lawyer represents multiple defendants (“multiple representation”) can raise Fifth and Sixth Amendment issues of due process and effective assistance of counsel, respectively. In such cases, ethical and constitutional standards can sometimes diverge: a representation can violate ethics rules without necessarily being unconstitutional. Here, we set out the constitutional framework; in the following sub-section, we turn to the ethical framework.
The constitutional framework draws on a quartet of U.S. Supreme Court decisions. In Glasser v. United States , 315 U.S. 60 (1942) , the same attorney represented two alleged co-conspirators in a fraud and corruption case. That attorney:
failed to cross-examine a prosecution witness whose testimony linked Glasser with the crime and failed to resist the presentation of arguably inadmissible evidence. . . . [B]oth omissions resulted from counsel’s desire to diminish the jury’s perception of a codefendant’s guilt. Indeed, the evidence of counsel’s “struggle to serve two masters [could not] seriously be doubted.” 52
The Court found that the attorney’s conflict of interest violated the Sixth Amendment right to effective assistance of counsel.
In Holloway v. Arkansas, 435 U.S. 475 (1978), a public defender assigned to represent three codefendants charged with robbery and rape 503protested to the trial judge that he could not effectively represent them all. All three wished to testify, and he would be unable to examine any of them without potentially undermining the defenses of the other two; nor, of course, could he cross-examine his own clients. The obdurate trial judge refused to appoint separate counsel for the three, or to conduct an inquiry into whether the conflict of interest was genuine. Here, the Supreme Court held that the refusal to appoint separate counsel itself violates the Sixth Amendment: “[W]henever a trial court improperly requires joint representation over timely objection, reversal is automatic,” regardless of whether counsel’s conduct of the case demonstrably harms a defendant. Id. at 488.
What if there is no timely objection? In Cuyler v. Sullivan , 446 U.S. 335 (1980) , three criminal defendants—Sullivan, Carchidi, and DiPasquale—were indicted for the first-degree murder of a labor official and his companion. Two lawyers, DiBona and Peruto, represented all three defendants. Neither Sullivan nor his lawyers objected to the multiple representation at any point. Sullivan went to trial first. The evidence against him was entirely circumstantial, consisting primarily of an eyewitness who saw the three defendants at the scene of the crime. The witness testified that shortly afterward he heard firecracker-like sounds, and was told by Carchidi to leave and say nothing. Sullivan’s defense rested without presenting any evidence. Sullivan was convicted, while his codefendants were later acquitted at separate trials.
Sullivan appealed, alleging ineffective assistance of counsel because his lawyers represented conflicting interests. On appeal, lawyers DiBona and Peruto offered conflicting accounts of the decision to present no affirmative case. DiBona claimed he had encouraged Sullivan to testify, while Peruto recalled that he had not “want[ed] the defense to go on because I thought we would only be exposing the [defense] witnesses for the other two trials that were coming up.”
Here, the Court held that the trial court’s failure to inquire into whether the multiple representation was improper did not violate Sullivan’s constitutional rights (although in federal cases, the Federal Rules of Criminal Procedure demand such an inquiry). 53 Furthermore, “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 348 . Justice Marshall, concurring in part and dissenting in part, criticized this requirement:
Such a test is not only unduly harsh, but incurably speculative as well. The appropriate question under the Sixth Amendment is whether an actual, relevant conflict of interests existed during the proceedings. If it did, the conviction must be reversed. . . . An actual conflict of interests negates the 504 unimpaired loyalty a defendant is constitutionally entitled to expect and receive from his attorney. . . .
Moreover, a showing that an actual conflict adversely affected counsel’s performance is not only unnecessary, it is often an impossible task. As the Court emphasized in Holloway:
[I]n a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing. . . . And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. . . .
Moreover, in many cases the effects of the conflict on the attorney’s performance will not be discernible from the record. It is plain to me, therefore, that in some instances the defendant will be able to show there was an actual, relevant conflict, but be unable to show that it changed his attorney’s conduct.
446 U.S. at 355 – 58 (Marshall, J., concurring in part and dissenting in part).
All these decisions concern the extent to which multiple representation of defendants with conflicting interests denies them effective assistance. Wheat v. United States, 486 U.S. 153 (1988), analyzes the mirror-image issue: Does preventing multiple representation violate defendants’ constitutional rights? In Wheat, the Government moved to disqualify attorney Iredale from representing Wheat in a drug conspiracy charge because Iredale was also representing the other alleged co-conspirators, Bravo and Gomez-Barajas. After Iredale had won an acquittal for Gomez-Barajas, the alleged leader of the conspiracy, Gomez-Barajas entered a guilty plea to lesser charges in order to avoid a second trial for other crimes. At the time of Wheat’s trial, Gomez-Barajas’s plea bargain had not yet been accepted, and the Government argued that, if it was rejected, Wheat would be called to testify against Gomez-Barajas. The Government also stated that Wheat’s testimony would be needed against Bravo.
Granting the Government’s motion, the trial court disqualified Iredale, and Wheat was convicted. Wheat appealed, arguing that the trial judge had abused his discretion in balancing the Sixth Amendment right to be represented by counsel of one’s choice against the Sixth Amendment right to legal assistance free of conflicts of interest, as Wheat wanted to be represented by Iredale.
Writing for the Court, Chief Justice Rehnquist rejected Wheat’s appeal, arguing that the trial judge was legitimately concerned about Iredale’s conflict. To hold otherwise, the Court wrote, would allow trial courts to be
“[W]hip-sawed” by assertions of error no matter which way they rule. If a district court agrees to the multiple representation, 505 and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. On the other hand, a district court’s refusal to accede to the multiple representation may result in a challenge [such as Wheat’s].
Justice Marshall (joined by Justice Brennan) dissented. He criticized the district judge and the Court’s majority for uncritically accepting the Government’s theory that Iredale was enmeshed in a conflict. The likelihood that Gomez-Barajas’s plea bargain would be refused was minimal, and the record showed that Wheat’s testimony had little bearing on Bravo’s case. Indeed, the Government had added Wheat to its witness list against Bravo only after Wheat attempted to retain Iredale; Marshall therefore suspected that doing so was “a maneuver to prevent Iredale from representing [Wheat] at trial.” Justice Marshall quoted the District Court’s acknowledgment that Iredale “did a fantastic job in that [Gomez-Barajas] trial.” Id . at 165–72 (Marshall, J., dissenting). To Marshall, these facts suggested that the prosecution’s real reason for wanting Iredale disqualified was the fear that he would be too effective.
An important conclusion is that the constitutional standards governing conflicts of interest in criminal defense may be different, and less demanding, than the ethical standards. Under the Cuyler standard, a defendant who does not object in a timely way to conflicted representation has not been denied the Sixth Amendment right to effective assistance of counsel unless the conflict adversely affects the defense lawyer’s performance. Rule 1.7, by contrast, prohibits concurrent conflicts of interest without any requirement of actual adverse effects. That means that, under Cuyler, representation of multiple criminal defendants that would be unethical under the Rules is not necessarily unconstitutional. Moreover, Cuyler’s standard places the burden of proof on the convicted defendant to show that the unethical representation adversely affected defense counsel’s performance.
1.The dueling opinions in Cuyler implicitly distinguish four conflict-of-interest situations: (1) potential conflicts of interest; (2) actual conflicts that do not impair representation; (3) actual conflicts that impair representation but do not affect the outcome; and (4) actual conflicts that impair representation and do affect the outcome. Neither the majority nor dissent asserts that the mere possibility of conflicting interests (which exists in all cases of multiple representation) necessarily amounts to reversible error. And Holloway establishes that a standard of actual prejudice, which would require proof that the outcome of the defendant’s case would have been different but-for the conflicted representation, sets too high a standard. Thus, the argument concerns the difference between (2) and (3). The Cuyler majority holds that the defendant must establish that the conflict adversely affected representation, while the dissent maintains that defendants should 506 need only to establish an actual conflict. Which position do you find most persuasive? How would you show an actual conflict of interest without being able to point to some concrete way the conflicted attorney had underperformed?
2.In Wheat , it was the prosecution that moved for Iredale’s disqualification. Why is the prosecution raising the possibility of such a conflict? Is it self-interest, to avoid a potentially reversible error if Wheat is convicted? Or is it altruistic, because, as explained in Chapter 8, prosecutors have a duty to justice that goes beyond the purely adversarial role? In a famous dictum in Berger v. United States , 295 U.S. 78, 88 (1935) , the Supreme Court said that the state’s interest in a criminal prosecution “is not that it shall win a case, but that justice shall be done.” Yet Justice Marshall suspects that the prosecutor in Wheat wanted to disqualify Iredale because he was too good, not because his representation of Wheat might not be good enough. Which way does the Berger dictum tilt under such circumstances? Should there be a rule prohibiting prosecutors from moving to disqualify defense counsel for conflict of interest when the defendant very much wants that counsel?
3. In Wheat , assume that Justice Marshall was correct about the low risk that Gomez-Barrajas’s plea bargain would be rejected, and about the tenuous connection of Wheat’s testimony to Bravo’s case. Assume as well that Iredale believed he could do a competent and diligent job representing Wheat, and that Wheat wanted Iredale. Under Rule 1.7(b), should Iredale have been disqualified?
Criminal Defense Practice: Ethical Issues
As we have noted, multiple representation of criminal defendants in the same matter may be constitutional without necessarily being ethical. Let us look more closely at the ethical standard. Rule 1.7(a)(2) declares the representation to be a concurrent conflict of interest if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Applying this rule requires an evaluation of the risks and benefits of multiple representation.
There are clearly potential benefits to multiple representation by a single lawyer or team of lawyers. First, and most obviously, defendants save money. By pooling their resources, they may obtain the services of an attorney that they otherwise could never afford. In white-collar contexts, defendants’ corporate employer may be willing to subsidize a unified defense for several employees. Minimizing the number of defense lawyers makes it easier to coordinate defenses. Multiple representation also facilitates control of information and “stonewalling,” the tactic of using a common attorney to encourage a united stance of noncooperation by several defendants or targets of investigations—perhaps not a 507 wonderful prospect from the point of view of justice, but, when successful, a beneficial outcome for the defendants. 54
What about the risks of multiple representation? In a classic treatment of this issue, John Stewart Geer noted a number of recurrent problems arising in the multiple representation of criminal defendants (particularly when the defendants are joined for trial). These include:
Stonewalling can also be a risky proposition for defendants. If a collective defense works, all is well from the defendants’ point of view, but if it doesn’t, hindsight may show that an individual client would have been better off cooperating with the authorities.
Consider this fact-pattern described by Kenneth Mann: “[E]ach client holds inculpatory evidence against the other, and the government has just enough evidence to consider asking for an indictment against each, but not enough to dismiss the option of granting immunity to one client in order to get determinative evidence against the other.” 56 In that case, “it is difficult for an attorney to act without compromising one of the client’s interests. If he advises neither to make a deal because he believes that he may be able to win the case for both, he is sacrificing certain 508 success for one of them. And he clearly cannot advise one to make a deal against the other’s interest.” 57
In this classic “prisoners’ dilemma,” what advice should defense counsel give? A lawyer who proposes a stonewall defense is asking the clients to trust each other, even though each knows that the other has a strong incentive to cut a deal. Can a defendant trust someone who has such a powerful reason to violate that trust? Moreover, each defendant knows that the other knows about that reason. Each, therefore, has grounds to suspect that the other will undertake a “preemptive” deal, which motivates each to strike first. In the words of game theorist Thomas Schelling: “I had to shoot him in self-defense to stop him from shooting me in self-defense.”
As a practical matter, the lawyer’s role in such contexts may well be to convince each defendant that the other is trustworthy. By breaking the spiral of mutual suspicion, the lawyer may be able to prevent deals that are less desirable than a united defense. But—the point bears repeating—this requires advising defendants to follow a course that is not individually rational, and which carries significant risks.
All this is to say that it is far from obvious whether representation of multiple defendants by a single lawyer does or does not create a “significant risk” of concurrent conflicts. Geer, in the analysis described above, recommended a per se rule forbidding the multiple representation of criminal defendants. This issue arose in a dramatic form in 2017, when the head of the Cook County (Illinois) public defender service—one of the nation’s largest, because Cook County includes Chicago—challenged the practice of multiple representation.
People v. Cole (Amy P. Campanelli, Appellant)
Supreme Court of Illinois
104 N.E.3d 325 (2017).
n Justice Thomas delivered the judgment of the court, with opinion.
On June 15, 2016, the circuit court of Cook County entered an order of adjudication of direct civil contempt against contemnor, Amy P. Campanelli, the [head] Cook County public defender, and sanctioned Campanelli $250 per day until she purged herself of direct civil contempt or was otherwise discharged by due process of law. . . .
Defendant Salimah Cole was charged in a 16-count indictment with 6 counts of first degree murder, 2 counts of armed robbery with a firearm, 5 counts of aggravated kidnapping, 1 count of aggravated arson, and 2 counts of possession of a stolen motor vehicle. The charges stemmed from the September 30, 2015, shooting, robbery, and kidnapping of La Prentis Cudjo and the robbery and kidnapping of Charles Morgan. Ashley 509Washington, Allen Whitehead, Zacchaeus Reed, Jr., Julian Morgan, and Brianna Sago were also charged in connection with those crimes. . . .
At the May 10, 2016, court date, Cole informed the trial court that she was not able to afford private counsel. The trial court stated that it would appoint the public defender to represent Cole. Contemnor Amy P. Campanelli, the public defender of Cook County, then asked the court not to appoint the office of the public defender to represent Cole. Campanelli asked for leave of court to file a notice of intent to refuse appointment and to ask for appointment of counsel other than the public defender. When asked to explain her motion, Campanelli stated that she actually was refusing the appointment. Campanelli informed the court that the public defender could not represent Cole because there was a conflict of interest due to the codefendants in the case. Campanelli explained that four of Cole’s five codefendants were charged with the exact same offenses as Cole. In addition, codefendants Reed and Whitehouse were also charged with intimidation of codefendant Washington, for threatening to harm Washington and her family if she worked with the police on the murder case.
The trial court then asked Campanelli to explain the direct conflict to the court. Campanelli clarified that there was a potential for conflict. Campanelli asserted that she did not have to wait until a conflict developed, nor could she divulge attorney-client privileged information in order to inform the court of those conflicts. After considering the matter, the trial court appointed the public defender of Cook County to represent Cole, over Campanelli’s objection. Campanelli asked the court to hold her in friendly contempt and to impose a nominal sanction so that she could seek appellate review of the court’s decision. The trial court took the request under advisement and asked Campanelli to put the basis for her refusal to represent Cole in writing.
[Campanelli based her decision and actions on the prohibition of concurrent conflicts of interest in Illinois Rule 1.7. In addition, she argued that her conflict must be imputed to all lawyers in the public defender’s office, because the public defender is a single law firm whose attorneys are vicariously disqualified under Rule 1.10. She took the position that in all cases with multiple defendants, private counsel must be appointed; the public defender cannot ethically represent more than one.]
In response to further questioning from the trial court, Campanelli stated that there were approximately 518 attorneys in the office of the Cook County public defender and that those 518 attorneys did not all share the same supervisors. With regard to the four other motions to withdraw that Campanelli had filed concerning Cole’s codefendants, Campanelli acknowledged that she had four separate attorneys from different divisions in her office representing those defendants. In addition, those assistant public defenders each had a different supervisor, but those supervisors might report to the same deputy 510director. Campanelli conceded that she has a multiple defender division for multiple offender cases but contended that she was in conflict even in those cases.
[The judge held her in civil contempt and imposed a $250 per day fine “until such time as Campanelli purged herself of direct civil contempt by accepting appointment as counsel for defendant Cole or until she was otherwise discharged by due process of law.”]
Those accused of crime have a sixth amendment right to the effective assistance of counsel. . . . The United States Supreme Court has held that requiring or permitting a single attorney to represent codefendants is not per se violative of the constitutional guarantee of the effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482 (1978). . . . Cuyler v. Sullivan, 446 U.S. 335 (1980), recognized, however, that since a possible conflict of interest inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts imperil his right to a fair trial.
Campanelli maintains that she did show that potential conflicts imperiled Cole’s right to a fair trial, so that the trial court erred in finding her in direct contempt of court. In making this argument, Campanelli contends that representation by the office of the Cook County public defender is tantamount to representation by a single attorney for purposes of conflict of interest analysis. Consequently, before we address whether Campanelli established that potential conflicts imperiled Cole’s right to a fair trial, we first must address Campanelli’s claim that representation by the public defender constitutes representation by a single attorney.
In support of this argument, Campanelli points to Rule 1.10 of the Illinois Rules of Professional Conduct of 2010. Rule 1.10(a) provides:
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm
Comment 1 to Rule 1.10 explains:
For purposes of the Rules of Professional Conduct, the term ‘firm’ denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. . . . . Whether two or more lawyers constitute a firm within this definition can depend on the specific facts.
511Campanelli argues that the office of the public defender is a “firm,” which means that its associated members—the assistant public defenders—may not represent clients with conflicting interests. In making this argument, Campanelli acknowledges that People v. Robinson, 402 N.E.2d 157 (Ill. 1979), held that a public defender’s office is not a firm. However, Campanelli maintains that Robinson did not resolve the question of whether the office of the public defender is a firm within the definition of Rule 1.10 because the Robinson decision predated the drafting of the written rules of professional conduct in Illinois. . . .
It is well settled that when statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law. . . . [T]his court is guided by the same principles applicable to the construction of statutes when interpreting supreme court rules. Consequently, in enacting the Illinois Code of Professional Responsibility, and later the Illinois Rules of Professional Conduct and the 2010 amendments to those rules, we presume that the court was well aware of its own case law holding that the office of the public defender is not a law firm for purposes of conflict of interest. . . .
Having found that the office of the public defender is not a “firm” for purposes of Rule 1.10, we next address Campanelli’s claim that Rule 1.7 bars the public defender from representing multiple defendants in a single prosecution. . . .
Campanelli also points to comment 23 to Rule 1.7, which explains that:
[S]imultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.
Campanelli argues that Rule 1.7 and comment 23 establish that conflicts are inevitable in cases of joint representation of codefendants.
While Rule 1.7 and comment 23 warn of the risk of joint representation of codefendants, the rule and comment address the representation of multiple defendants by one attorney. The issue here, in contrast, is whether representation of codefendants by different assistant public defenders presents a conflict of interest. . . .
The fact that the trial court appoints the office of public defender to represent an indigent defendant, rather than appointing specific 512assistant public defenders, does not thereby transform the office of the public defender into a single entity for purposes of conflict of interest analysis. Similarly, the fact that the appointed public defender has supervisory authority over his or her assistant public defenders does not override an assistant public defender’s undivided loyalty to his client. . . .
While Campanelli has oversight of the approximately 518 assistant public defenders in her office, it is the assistant public defender appointed to represent a defendant who provides the legal services to that defendant. The assistant public defender’s loyalty to his office has not been deemed great enough to impute to him the conflicts of other assistant public defenders. . . . [T]he fact that Campanelli has supervisory authority over all the assistant public defenders in the office of the Cook County public defender is not sufficient grounds, in and of itself, to disqualify the entire office from representing codefendants.
Campanelli next argues that, in any event, the trial court abused its discretion in appointing her to represent Cole because she twice informed the court that a direct conflict of interest prevented her from zealously representing Cole. Campanelli points to her written submission to the court stating that there was a conflict in representing Cole with respect to her codefendants, but that “more detail cannot be given without violating the attorney-client privilege, which is the very thing the Public Defender is seeking to avoid via the appointment of counsel.” When she appeared in court on the issue, Campanelli again told the court she was in conflict and could not “divulge attorney-client privilege information that I have learned about the other five codefendants in this case in order to tell you what the conflicts in this case are.” Citing Holloway, Campanelli contends that it was enough to prove a conflict when she, as an officer of the court, represented that Cole would be prejudiced by her appointment. . . .
Campanelli is correct that counsel cannot be ordered to divulge attorney-client privileged information. However, Holloway explained that its holding did not preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interest without improperly requiring disclosure of the confidential communications of the client. The trial court in this case never ordered Campanelli to divulge confidential communications in attempting to ascertain the basis for Campanelli’s refusal to accept the appointment to represent Cole.
Campanelli then argues that the trial court erred in asking her to explain the direct conflict regarding the representation of Cole to the court. At oral argument, counsel for Campanelli argued that Campanelli need only allege a conflict of interest, without more, in order to withdraw from representation. . . .
A defendant raising a potential conflict between two public defenders need only present the gist of such a conflict. . . . However, bare allegations of a conflict are not enough, and in the absence of an 513evidentiary record of conflict, a conflict should not be created based on mere speculation. Relevant factors to consider include whether the two public defenders were trial partners in the defendant’s case; whether the public defenders were in hierarchical positions where one supervised or was supervised by the other; or whether the size, structure, and organization of the office in which they worked affected the closeness of any supervision. . . .
Upon review, we find no abuse of discretion in the trial court’s finding. . . .
We note that even in her brief on appeal, Campanelli’s argument concerning her conflict centers on a remote potential for conflict. She argues that it is all but inevitable in a joint representation that a conflict of interest will arise and that conflicts are difficult to discern at the outset of criminal litigation. Campanelli also argues that waiting to appoint conflict-free counsel until a conflict reveals itself is wasteful and often prejudicial. In addition, Campanelli asserts that conflicts that do not exist at the outset of a representation may arise later in the case.
These “potential conflicts,” however, are the type that may exist in every case involving multiple representation of codefendants. Cuyler recognized that “a possible conflict inheres in almost every instance of multiple representation.” Nonetheless, the United States Supreme Court and this court have declined to find a per se conflict of interest simply because multiple representation may involve a conflict of interest. . . .
Accordingly, we affirm the trial court’s judgment finding Campanelli to be in direct civil contempt and imposing sanctions for that contempt. We note, however, that the record is clear that the trial court understood Campanelli’s contempt was purely a formal one and that the motivation for the contempt was solely to permit an appeal of the issue of multiple representation of defendants in light of the 2010 revisions to the Illinois Rules of Professional Conduct. Given these circumstances, we vacate the order of the trial court holding Campanelli in contempt and vacate the award of sanctions, despite our finding that the contempt order and award of sanctions were valid. . . .
Circuit court judgment affirmed. Adjudication of direct civil contempt vacated.
1.Section D infra will discuss the issue of vicarious (or “imputed”) disqualification of all attorneys in a firm based on a single firm member’s conflict in greater detail. For present purposes, it suffices to know that under Rule 1.10, if one lawyer in a firm would be conflicted out of a multiple representation because of a concurrent conflict, all the lawyers in the firm are likewise disqualified, even if no lawyer in the firm would actually represent more than one of those clients. Comment 2 to Rule 1.10 explains that “a firm of lawyers is essentially one lawyer for purposes of the rules 514 governing loyalty to the client,” and “each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.” Thus, if Lawyer A in the firm represents Client 1, while Lawyer B in the same firm represents Client 2, it is as though one lawyer is representing both clients—and if either lawyer is disqualified for a concurrent conflict of interest, so are all the other lawyers in the firm. Campanelli’s argument is that these principles should apply to the public defender’s office, just as they do to a private law firm.
2.Rejecting her argument, the Illinois Supreme Court places weight on the fact that the Cook County Public Defender has more than 500 lawyers. Those who would represent Cole and her codefendants would each represent only one of them, and each lawyer would report to a different supervisor. The court concludes that, in real-world terms, each defendant’s lawyer would be able to offer undivided loyalty to their client. The conflict of interest is formal, but not real.
Wouldn’t the same argument apply to a large private law firm? For example, the home office of the Chicago-based law firm Kirkland & Ellis has more than 700 lawyers—and yet the vicarious disqualification rule unquestionably applies to private law firms like Kirkland.
3.The court cites a 1979 Illinois case, People v. Robinson, for the proposition that a public defender office is not a law firm for purposes of the vicarious disqualification rule. Why not? In Robinson, the prosecution argued that public defender offices are structured differently from private law firms, and individual defenders do not owe the same duty of loyalty to their office that private attorneys owe to their firms, a loyalty that may conflict with undivided loyalty to clients. The Robinson court rejected both those explanations, however. Instead, it based its holding on a practical concern: “[T]he application of such a per se rule [of vicarious disqualification] would require the appointment of counsel with virtually no experience in the trial of criminal matters, thus raising, with justification, the question of competency of counsel.”58 Is this really so? The three cases consolidated in Robinson took place in relatively small counties, where it may indeed be supposed that the number of capable criminal defense lawyers in private practice is small. Chicago, on the other hand, has more than 30,000 lawyers, including hundreds of experienced criminal defenders in private practice. Does Robinson’s rationale apply in such circumstances?
In response to concerns about protecting indigent defendants against conflict-ridden representation, Robinson quotes an ABA document: “Those who have studied voluntary and public defender offices have concluded that the inbred adversarial tendencies of the lawyers are sufficient protection.” 59 Are they truly sufficient protections? Then why have concurrent conflicts rules at all?
4.Is the Cole court implicitly assuming that indigent criminal defendants don’t need the same level of ethical protection as clients of private law firms? 515 Is there a background worry that assigning private counsel would cost the county too much money?
5.Campanelli asserts that representing Cole and her codefendants would be a prohibited concurrent representation, but that confidentiality precludes her from explaining why. The court finds her explanation unsatisfactory. Should it? Consider these dicta from Holloway :
Additionally, since the decision in Glasser, most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. In so holding, the courts have acknowledged and given effect to several interrelated considerations. An “attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. Finally, attorneys are officers of the court, and “ ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” We find these considerations persuasive.
Holloway also says that its holding does not “preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client.” Id . at 487 . How can a court do that?
B.Conflicts Involving Former Clients
Another constellation of conflicts can arise when a lawyer wishes to represent a client against a former client. The basic rule governing successive representation of conflicting interests is Rule 1.9. It provides:
Rule 1.9—Duties to Former Clients
(a)A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b)A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1)whose interests are materially adverse to that person; and
(2)about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
516unless the former client gives informed consent, confirmed in writing.
(c)A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1)use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2)reveal information relating to the representation except as these Rules would permit or require with respect to a client.
1.The Rationale for Disqualification
If lawyers were unable to accept new matters adverse to past as well as current clients, the rules would be unworkable. As attorneys’ careers progressed, and their number of past clients increased, their ability to accept new cases would plummet. Lawyers would become totally identified with their previous clients, and the concept of an independent profession would be threatened.
For that reason, it is often said that the rules governing concurrent representation of conflicting interests are based on loyalty and confidentiality, while the rules governing successive representation are based on confidentiality alone. 60 When confidentiality is not an issue, lawyers may represent current clients against former clients. The principal exception occurs when a lawyer, on behalf of the current client, attacks work done on behalf of a former client, for example by litigating to declare a contract unenforceable even though the lawyer drafted the contract in the earlier representation. Here, disqualification results whether or not the lawyer acquired confidences from the former client. The rationale for this exception is given in the Restatement § 132, cmt. (b): “[A]t the time the lawyer represented the former client, the lawyer should have no incentive to lay the basis for subsequent representation against that client, such as by drafting provisions in a contract that could later be construed against the former client.”
2.The Substantial Relationship Standard
To determine when representation adverse to a former client poses significant confidentiality concerns, courts and ethical codes have focused on whether there is a “substantial relationship” between the current and the former matter. The following case is a leading precedent on point. Although the court decides the case under the 1969 Code of Professional 517 Responsibility, the doctrine remains materially the same under the Model Rules.
The case below arose out of Westinghouse’s antitrust suit against uranium suppliers, alleging that price-fixing by its suppliers forced Westinghouse to default on nuclear reactor contracts. Although Gulf Oil Corporation and United Nuclear Corporation (UNC) were both defendants in this action, their interests were adverse: UNC was trying to exculpate itself by inculpating Gulf. UNC was represented by the Bigbee law firm, which had previously represented Gulf. Gulf therefore moved for Bigbee’s disqualification.
In terms of Bigbee’s past services for Gulf, from 1971 through 1976, Bigbee had represented Gulf on legal matters concerning Gulf’s uranium operations in New Mexico. Gulf obtained uranium reserves at Mt. Taylor, and Bigbee drafted mining patents for that property and litigated conflicting claims to the property. Gulf alleged that it had given Bigbee detailed information about the quality and quantity of uranium at Mt. Taylor, together with information concerning Gulf’s reasons for delaying production of that uranium. Such information, Gulf argued, was directly relevant to Westinghouse’s allegation that Gulf had withheld uranium in restraint of trade. Accordingly, Gulf claimed that Bigbee’s access to confidential communications could aid UNC in its effort to inculpate Gulf. Unmoved, the district court denied Gulf’s motion to disqualify Bigbee. This appeal to the Seventh Circuit followed.
Westinghouse Electric Corp. v. Gulf Oil Corp.
United States Court of Appeals for the Seventh Circuit
588 F.2d 221, 222–25, 227–29 (1978)
.
n Sprecher , Circuit Judge .
In this case we review the propriety of a district court’s refusal to grant a motion to disqualify opposing counsel. The issues presented are whether there is a sufficient relationship between matters presented by the pending litigation and matters which the lawyers in question worked on in behalf of the party now seeking disqualification and whether the party seeking disqualification has given legally sufficient consent to the dual representation. . . .
II
The district court set out and attempted to apply what is clearly settled as the relevant test in disqualification matters: where an attorney represents a party in a matter in which the adverse party is that attorney’s former client, the attorney will be disqualified if the subject matter of the two representations are “substantially related.” . . .
[T]he determination of whether there is a substantial relationship turns on the possibility, or appearance thereof, that confidential information might have been given to the attorney in relation to the subsequent matter in which disqualification is sought. The rule thus does 518 not necessarily involve any inquiry into the imponderables involved in the degree of relationship between the two matters but instead involves a realistic appraisal of the possibility that confidences had been disclosed in the one matter which will be harmful to the client in the other. The effect of the Canons is necessarily to restrict the inquiry to the possibility of disclosure; it is not appropriate for the court to inquire into whether actual confidences were disclosed. 3 . . .
Essentially then, disqualification questions require three levels of inquiry. Initially, the trial judge must make a factual reconstruction of the scope of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. Finally, it must be determined whether that information is relevant to the issues raised in the litigation pending against the former client.
Although the district court properly identified this rule of law, it erred in its application. . . . Here it could reasonably be said that during the former representation the attorneys might have acquired information related to the subject matter of the subsequent representation, that the former representation was lengthy and pervasive, that the former representation was more than peripheral, and that the relationship between the two matters is sufficiently close to bring the later representation within the prohibition of the canons. Therefore there was clearly a substantial relationship between the two representations.
III
Given the conclusion that the Bigbee firm’s prior work for Gulf was sufficiently related to issues raised in the present litigation, it is necessary to address UNC’s argument that Gulf waived any right it might have had to seek disqualification. Although this issue was not addressed by the district court, we hold that, even accepting completely UNC’s account of the facts supporting waiver, these facts are legally insufficient to demonstrate a waiver that would prevent disqualification in the present case.
UNC now claims that in 1971, as Gulf began development of its New Mexico properties and sought to retain the Bigbee firm, Gulf was informed that the Bigbee firm had a prior relationship with UNC, which 519 like Gulf was involved in the mining of uranium. UNC further claims that Bigbee informed Gulf that due to this relationship the Bigbee firm could only represent Gulf if Gulf consented that should a conflict arise between Gulf and UNC, Bigbee would not be precluded from representing UNC. Although this forms the basis of UNC’s argument of waiver, it also argues that the waiver was subsequently reaffirmed by Gulf on two other occasions. . . . Ultimately UNC’s waiver argument depends on the underlying proposition that a client would, or even may, authorize an attorney to utilize against him information given to the attorney in confidence.
As we noted earlier, disqualification in this case is required by the application of Canon 4 [the confidentiality rule]. . . .
[I]t is impossible to conclude that a client could ever have any reason to desire that information disclosed in confidence should be utilized against him. . . . Accordingly, we hold that a simple consent by a client to representation of an adverse party is not a defense to that former client’s motion for disqualification, such as the one under review here, based on the possibility that confidential information will be used against the former client.
The district court is reversed and the motion of Gulf Oil Corporation to disqualify Bigbee, Stephenson, Carpenter & Crout from representing United Nuclear Corporation in Westinghouse Electric Corporation v. Rio Algom Limited, et al., is granted.
Reversed and remanded .
———
The “substantial relationship” test the court utilizes in Westinghouse , above, originated in Judge Weinfeld’s opinion in T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268 (S.D.N.Y. 1953) :
[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.
Westinghouse adopts this test, but adds to it Judge Marshall’s explanation in Cannon v. U.S. Acoustics Corp., 398 F. Supp. 209, 223 (N.D. Ill. 1975) , that a substantial relationship “is determined by asking whether it could reasonably be said that during the former representation [that] attorney might have acquired information related to the subject matter of the subsequent representation.” Under 520 Westinghouse , if confidences might have passed, the court will irrebuttably presume that they have passed.
Rule 1.9(a) codifies this body of decisional law, prohibiting lawyers from representing a person “in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Comment 3 defines “substantial relationship” in terms slightly different from Judge Sprecher’s Westinghouse test: Matters are substantially related if there is “a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” According to this test, not only must the confidential information that presumptively passed from the former client to the attorney be relevant to the present case, it must materially advance the present client’s position.
Why make the presumption that confidences have passed an irrebuttable one? In the passage quoted in footnote 3 of Westinghouse, Judge Weinfeld explained that making the former client demonstrate that confidences had actually passed to the attorney would be self-defeating, for it would require disclosure of the very confidences that disqualification is meant to preserve. This would not always be avoided by having a court review the evidence in camera because many cases settle before that stage. Endorsing this position, in Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269 (7th Cir. 1983) , Judge Posner wrote: “The ‘substantial relationship’ test has its problems, but conducting a factual inquiry in every case into whether confidences had actually been revealed would not be a satisfactory alternative.”
But when, exactly, are two representations “substantially related”? It is not always easy to say what information about the former client is confidential and material to the new representation. Matters are clearly substantially related if the current matter involves the work the lawyer performed for the former client. But beyond that, determining whether two representations are “substantially related” gets murkier. 61 Consider the so-called “playbook problem.” As explained by Charles Wolfram: “Playbook involves the claim that although the lawyer doesn’t know anything specific about the matter, the lawyer knows a lot of generalities about the former client and therefore the lawyer is disqualified.” 62 Wolfram elaborates: “There have been cases suggesting that if you know something about the way the client’s head works you know something that’s relevant for purposes of applying the substantial relationship test. . . .” 63
521A representative example of this “playbook problem” involves Wendy Fleishman, a lawyer who had previously represented the insurance company MetLife in personnel matters. Fleishman was disqualified when she joined a law firm representing MetLife employees suing the company for gender discrimination. The court concluded that she knew too much about MetLife’s personnel department and its procedures; furthermore, she “was privy to highly privileged communications originating with MetLife’s corporate law department regarding settlement strategies in class action litigations.” In other words, even if Fleishman knew nothing specific about the gender discrimination cases, she knew MetLife’s playbook, and that made her past cases and the present case “substantially related.” Interestingly, Professor Wolfram served as an expert witness on the side of Fleishman’s new firm, which opposed disqualification; in response, the judge cited the paragraph quoted above from his article to explain why she must be disqualified. 64
Another example might be the following:
Assume, for example, that Lawyer for ten years represents Manufacturer defending product liability cases involving a particular product. Over that time Lawyer has become intimately familiar with Manufacturer’s engineers, in-house lawyers, the technology, whereabouts of files, Manufacturer’s attitudes regarding settlement, and the like. . . . Lawyer ceases the representation and returns all the files to Manufacturer. A year later a person injured while using that type of product seeks to hire Lawyer to sue Manufacturer. The injury occurred after Lawyer and Manufacturer parted ways. 65
In that example, many courts would find that, because Lawyer possesses the Manufacturer’s “playbook,” Lawyer must be disqualified. 66
Exactly how much information is required in order to trigger disqualification because the lawyer knows the former client’s “playbook”? Courts currently disagree, although the Rules seek to impart some clarity via Comment 3 to Rule 1.9. It states that “general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.” In the MetLife case, did Fleishman’s knowledge of MetLife’s settlement strategies for class actions count as “general knowledge of the client’s policies and practices,” or as “specific facts relevant to the matter in question”?
Notice that T.C. Theatre refers to a substantial relationship between “the matters or cause of action,” which suggests that the relationship can exist between the facts (“matters”) of the two cases or between the legal 522issues (“cause of action”) of the two cases. Focusing on legal issues generally results in a considerably narrower range of disabling conflicts than focusing on factual questions. Thus, for example, a lawyer may represent a client in a series of real estate transactions and then attempt to represent the client’s spouse in a divorce action where the value of the former client’s property is a contested issue.67 The legal questions are completely unrelated, but the factual questions overlap and the potential for misusing the former client’s confidences is significant. Thus, the two matters would be substantially related under Model Rule 1.9 and Westinghouse v. Gulf.
What if a lawyer did not personally represent the former client, but the lawyer’s former firm did? Ordinarily, one lawyer’s conflicts of interest are imputed to all lawyers in the firm, but this imputation may end when the lawyer leaves the firm, provided the lawyer acquired no confidential information about the former client. 68 Under those circumstances, if the lawyer’s new firm seeks to represent a party against the previous firm’s former client, the new firm may rebut the presumption that the lawyer had obtained confidences. This exception is governed by Rules 1.9(b)–(c).
As we shall see in Section D, infra , under Rule 1.10(a)(2), even if a lawyer who moves to a new firm has, in fact, acquired confidential information about a client of a former firm, the new firm may still represent a client whose interests conflict with the former firm client if proper screening devices are put into place. Furthermore, just as Rule 1.9(b) allows lawyers who have moved to a new firm to rebut the presumption that they acquired confidential information about the former firm’s client, Rule 1.10(b) allows the former firm to rebut the presumption that any of its lawyers retain confidential information about the former client after the lawyers who represented that client depart.
These exceptions to disqualification are especially important to young associates (including summer associates), who may work on limited issues in a case without acquiring confidential information. As one court commented in an influential case half a century ago:
The law must reject defendants’ suggestion that for purposes of disqualification, . . . every associate is charged with the knowledge of the confidences of every lawyer in the firm. Nor can it accept the more limited submission that any associate who did substantial work for a client is thereafter precluded from opposing it in any litigation. . . . Young lawyers will necessarily become overcommitted to their initial employer if the rules of disqualification are applied so as to prevent them 523 from being retained by clients seeking their specialized services. 69
You are a business lawyer with an expertise in corporate mergers and acquisitions. Executives from Insatiable Industries approach you to represent Insatiable in a forthcoming hostile takeover attempt of Tidbit Technologies. One of the crucial decisions in any hostile takeover is how much to offer stockholders of the target for their shares; the amount must be large enough to induce them to sell, but not so large that acquiring the target becomes unprofitable. To set the share price of the tender offer, corporate raiders carefully evaluate the profitability of the target, a task for which information about the target is crucial. Although normally such calculations are made by financial specialists well in advance of retaining counsel, adjustments in the face of new information are possible. Bearing this in mind, consider four alternative scenarios:
a)Tidbit Technologies has a unionized workforce, and several years ago your firm represented Tidbit in negotiating a labor contract with the union.
b)Several years ago, Tidbit Technologies fended off another hostile takeover, by a company unrelated to Insatiable Industries. A different law firm than yours handled Tidbit’s takeover defense, which included lawsuits in state and federal courts. However, after losing on a complex choice-of-law issue, Tidbit retained your firm to draft a petition for certiorari to the U.S. Supreme Court. The cert petition was denied, and that ended the representation. No lawyer in your firm acquired confidential information from Tidbit.
c)Several years ago you drafted “poison pill” anti-takeover bylaws for Tidbit Technologies. No lawyer in your firm acquired confidential information from Tidbit. However, if you represent Insatiable Industries in its takeover of Tidbit, you may be forced to argue in court that the poison pill provisions you drafted violate state law.
d)Several months ago Tidbit Technologies came to your firm for advice on legal aspects of a contemplated expansion into European markets. No lawyer in your firm acquired confidential information from Tidbit. The company’s executives stated that they would continue to use your firm if they decided to proceed with the European expansion. Since then, there has been no further contact between Tidbit and your law firm. The Wall Street Journal reports that Tidbit has put its European plans on hold.
Under which, if any, of these scenarios may you represent Insatiable Industries in the hostile takeover of Tidbit Technologies?
524References: Rules 1.6 , 1.7 , 1.9 , 1.10 .
3.Former-Client Conflicts in Criminal Defense
What if criminal defense counsel has a conflict arising from representation of a former client? The U.S. Supreme Court confronted (although didn’t answer) this question in Mickens v. Taylor , 535 U.S. 162 (2002) .
Mickens was sentenced to death for murdering Timothy Hall “during or following the commission of an attempted forcible sodomy,” a circumstance making him death-eligible. Id. at 164 . It was later discovered that Mickens’s counsel, Bryan Saunders, was Hall’s appointed counsel at the time of the murder in a juvenile-court assault and concealed weapons case. Saunders met Hall once, for about fifteen to thirty minutes. Just one business day after the state court judge discharged Saunders because of Hall’s death, she appointed Saunders to represent Mickens in Hall’s murder case. She did not conduct an inquiry into the possibility that Saunders had a conflict of interest. When the Fourth Circuit Court of Appeals denied Mickens’s habeas petition (which sought relief under the Sixth Amendment, for ineffective assistance of counsel), he appealed. The Supreme Court granted certiorari.
Supreme Court of the
United States
535 U.S. 162 (2002)
.
n Mr. Justice Scalia delivered the opinion of the Court.
The question presented in this case is what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known. . . .
II
The Sixth Amendment provides that a criminal defendant shall have the right to “the assistance of counsel for his defence.” This right has been accorded, we have said, “not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” It follows from this that assistance which is ineffective in preserving fairness does not meet the constitutional mandate, see Strickland v. Washington , 466 U.S. 668, 685–686 (1984) ; and it also follows that defects in assistance that have no probable effect upon the trial’s outcome do not establish a constitutional violation. As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
There is an exception to this general rule. We have spared the defendant the need of showing probable effect upon the outcome, and 525 have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. But only in “circumstances of that magnitude” do we forgo individual inquiry into whether counsel’s inadequate performance undermined the reliability of the verdict.
We have held in several cases that “circumstances of that magnitude” may also arise when the defendant’s attorney actively represented conflicting interests. The nub of the question before us is whether the principle established by these cases provides an exception to the general rule of Strickland under the circumstances of the present case. . . .
Since this was not a case in which (as in Holloway ) counsel protested his inability simultaneously to represent multiple defendants; and since the trial court’s failure to make the [ Cuyler v. ] Sullivan -mandated inquiry does not reduce the petitioner’s burden of proof; it was at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel’s performance. The Court of Appeals having found no such effect, the denial of habeas relief must be affirmed.
III
Lest today’s holding be misconstrued, we note that the only question presented was the effect of a trial court’s failure to inquire into a potential conflict upon the Sullivan rule that deficient performance of counsel must be shown. The case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable—requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases) a showing of probable effect upon the outcome of trial. . . . Both Sullivan itself and Holloway stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. Not all attorney conflicts present comparable difficulties. Thus, the Federal Rules of Criminal Procedure treat concurrent representation and prior representation differently, requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single attorney (Rule 44(c)), but not when counsel previously represented another defendant in a substantially related matter, even where the trial court is aware of the prior representation.
This is not to suggest that one ethical duty is more or less important than another. The purpose of our Holloway and Sullivan exceptions from the ordinary requirements of Strickland , however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel. . . . In resolving this case on the grounds on which it was presented to us, we do not rule upon 526 the need for the Sullivan prophylaxis in cases of successive representation. Whether Sullivan should be extended to such cases remains, as far as the jurisprudence of this Court is concerned, an open question.
For the reasons stated, the judgment of the Court of Appeals is
Affirmed .
———
Four justices dissented in Mickens in three separate opinions (and Justice Kennedy concurred separately as well). Justice Stevens argued that Saunders’s prior representation of Hall may indeed have adversely affected his performance:
Mickens’ habeas counsel garnered evidence suggesting that Hall was a male prostitute; that the area where Hall was killed was known for prostitution; and that there was no evidence that Hall was forced to the secluded area where he was ultimately murdered. An unconflicted attorney could have put forward a defense tending to show that Mickens killed Hall only after the two engaged in consensual sex, but Saunders offered no such defense. This was a crucial omission—a finding of forcible sodomy was an absolute prerequisite to Mickens’ eligibility for the death penalty.
535 U.S. at 181 (Stevens, J., dissenting).
Justice Stevens also noted that Saunders’s duty to keep Hall’s confidence did not end with Hall’s death, and in this case, Saunders did not disclose that Hall’s mother had sworn out a warrant for his arrest for assault and battery—a disclosure which might have allowed Mickens to challenge her victim-impact statement that “all [she] lived for was that boy.” Id. at 183 n.4 .
Justice Breyer’s dissent, joined by Justice Ginsburg, focused on the particulars of Mickens : the peculiarity of having a murder victim’s attorney represent his alleged murderer, the state’s role in creating this anomalous situation by appointing the victim’s attorney to represent his murderer, and the fact that the death penalty hung in the balance. They believed that these circumstances represent a “breakdown in the criminal justice system . . . serious enough to warrant a categorical rule—a rule that does not require proof of prejudice in the individual case.” Id. at 211 (Breyer, J., dissenting).
On a less substantive note, it is striking that none of the nine justices or their clerks appeared to know that the rules of professional conduct are not called the “Canons of Legal Ethics.” The ABA Code replaced the Canons of Professional Ethics in 1969, thirty-three years before Mickens, and the ABA replaced the Code with the Model Rules in 1983.
5271.Are you persuaded by Justice Scalia’s majority opinion? Why or why not?
2.The State asserted in its brief that Mickens’s argument of inadequate assistance of counsel “relies heavily on the immediate visceral impact of learning that a lawyer previously represented the victim of his current client.” Is visceral impact all there is to it? Should the fact that a trial feels fundamentally unfair count for purposes of establishing constitutional standards?
3.In dicta at the end of its opinion, the Court’s majority insists that it has not addressed the general question of whether a former-client conflict adversely affecting counsel’s performance is per se a constitutional error. To the contrary, the Court merely assumed that it is for purposes of inquiring about “the effect of a trial court’s failure to inquire into a potential conflict upon the Sullivan rule.” 535 U.S. at 174 . The majority goes on to suggest that, in former-client conflicts, perhaps the rule should be the less defendant-friendly Strickland standard, which requires the defendant to show prejudice. Would that be an appropriate rule?
Lawyers and law firms nervous about conflicts of interest frequently ask clients to waive potential conflicts in advance. Waivers can encompass both concurrent and former-client conflicts. Recall that the validity of such a waiver came up in Westinghouse v. Gulf Oil , where UNC argued that Gulf Oil had waived the right to disqualify the Bigbee firm. The court disagreed. Under the Seventh Circuit’s analysis, client waivers may be binding in cases of concurrent representation because clients are in an “adequate position to judge the effects of divided loyalties.” By contrast, in cases of successive representation:
Disqualification based on the potential for abuse of confidential information . . . involves different considerations which preclude the effectiveness of consent, particularly a vague, general consent given or implied prior to the threat of disclosure or adverse litigation. In that instance it is impossible to conclude that a client could ever have any reasons to desire that information disclosed in confidence should be utilized against him.
Westinghouse , 588 F.2d at 229 .
Yet as other courts and commentators have noted, waivers consisting of “a vague, general consent given or implied prior to the threat of disclosure or adverse litigation” may be equally suspect in concurrent representation. In the words of the Restatement § 122, cmt. (d): “A client’s open-ended agreement to consent to all conflicts normally should be ineffective unless the client possesses sophistication in the matter in question and has had the opportunity to receive 528 independent legal advice about the consent.” 70 In line with the Restatement ’s view quoted above, the ABA’s Standing Committee on Ethics and Professional Responsibility, in Formal Opinion 05 – 436 (2005) , supported the enforceability of open-ended advance waivers only in limited circumstances, such as where the client is sophisticated, has advice of other (presumably in-house) lawyers, and the consent involves matters not substantially related to the representation. 71
Nevertheless, what little empirical information is available suggests that law firms frequently request blanket waivers of both concurrent and successive conflicts of interest from clients. In one study of Illinois attorneys, over two-thirds indicated that they informed clients that conflicts were waivable 90 percent of the time. 72 A proposed model waiver agreement provides:
The Firm only seeks a waiver for work that is entirely factually and legally unrelated to the Matter. Thus, the Firm does not request a waiver that would allow it:
Outside of these limitations, the Firm is and will remain free to represent other clients adversely to the Client. In other words, we may represent other clients in negotiations, business transactions, litigation, alternative dispute resolution, 529 administrative proceedings, discovery disputes, or other legal matters even if those matters are adverse to Client. 73
1.What do you make of the above model waiver? Do you think it adequately protects clients? Does it matter whether the client signing the waiver is a sophisticated entity or a first-time user of legal services?
2.As noted, conflict waivers have become quite commonplace. Yet research on informed consent reveals that such consent is highly imperfect in this context. 74 Various cognitive biases prevent individuals from adequately comprehending information, even when conflicts are fully disclosed. Because so much self-serving bias operates at unconscious levels, neither those who give, nor those who receive, skewed advice may appreciate the extent of the problem. A further problem is that informed consent strategies may reduce professionals’ feelings of concern about potentially adverse effects, and encourage them to merely disclose, rather than avoid, compromising influences. 75
3.What happens when a conflict is “thrust upon” a lawyer, such as when a client acquires another company that presents a conflict, or additional parties join a lawsuit? A lawyer may withdraw, but (under Rule 1.16) might need court approval and must take steps to minimize the harm to clients. 76 Sometimes, the lawyer may not need to withdraw. The Restatement § 132 makes clear that the test of substantial relationship should be whether overlapping facts create a “substantial risk that representation of the present client will involve use of information acquired in the course of representing the former client.” 77 If there is not a substantial risk, courts may not require disqualification.
4.David Boies’s efforts on behalf of Harvey Weinstein, described in Chapter 4, raise issues of conflicts of interest and waiver. Boies signed a contract on Weinstein’s behalf with the Black Cube private investigation organization that directed it to uncover “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper.”78 The newspaper was the New York Times, which Boies’s firm, Boies Schiller Flexner LLP, was representing in unrelated matters. When the Boies-Black Cube contract surfaced, the Times’s lawyers 530denounced Boies’s conduct as a “grave betrayal of trust” and terminated the firm.79
Boies, however, denied that efforts to discredit the Times story reflected such a conflict. In his view, it was “entirely appropriate to investigate precisely what [Weinstein] was accused of doing and to investigate whether there were facts that would rebut those accusations.” He added: “If evidence could be uncovered to convince the Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to the Times’s interests.”80 Boies also pointed out that his firm had a clause in its retainer agreement with the Times that purported to waive all conflicts of interest on matters unrelated to the matter on which the newspaper had retained the firm.81 Specifically, a clause in the retainer agreement stated that the firm might engage with clients “where the interests of the other persons, and the Firm’s representation of them, may be against the [Times’s interests], including adversity in litigation.”82
The Times insisted:
We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material to our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.83
The “legalistic argument” that could be made on behalf of Boies and Boies Schiller rests on a 2006 ethics opinion, where the Association of the Bar of the City of New York took the position that, if a client is sophisticated, “blanket or open-ended advance waivers that are accompanied by relatively limited disclosure about the prospective conflicting matters should nevertheless be enforceable.” That is because “[s]ophisticated clients need less disclosure.” Indeed, “a law firm may ethically request an advance waiver that includes substantially related matters” if the client is sophisticated, provided the following conditions are met: “the waiver is not applied to opposite sides of the same litigation and opposite sides in a starkly disputed transactional matter”; client confidentiality is not compromised; the conflict is “consentable” under the ethics rules; and one other condition not relevant to the Boies-Weinstein matter.84 A consentable multiple representation is one in which “a disinterested lawyer would believe that the lawyer can competently represent the interest of each [client].” This test comes from an 531earlier version of the New York ethics rules; the current version of New York Rule 1.7(b) is identical in wording to the Model Rule.
What is your view? Did the firm’s expansive advance waiver (contained in the Boies Shiller-New York Times retention agreement) comply with Model Rule 1.7 and cure any potential violation? Does the clandestine nature of Black Cube’s operation take it out of the range of risks that even a sophisticated client like the Times could be expected to understand?85
5.Note that a broad advance waiver cannot cure a pre-existing concurrent conflict of interest known to the law firm at the time of the retainer agreement but not disclosed to the client signing the waiver. Indeed, the failure to disclose that conflict is unethical, and voids both the waiver and a fee arbitration clause in the waiver agreement.86
Games Lawyers and Clients Play: “Sabotage,” “Protection,” and “Hot Potatoes”
One reason law firms seek advance waivers is to ward off strategic behavior by business clients to “conflict them out” of adverse representations. Sophisticated corporate clients, that is, sometimes distribute small amounts of legal work among many law firms in order to ensure that they will be unavailable to represent potential adversaries in upcoming major deals or litigation—a tactic that some lawyers describe as “sabotage.”87 This is one of several conflict-of-interest games that shrewd businesses and law firms play with each other. A related practice is to place highly feared lawyers on retainer so that they cannot represent future opponents. Prominent lawyers may, in turn, exploit their reputations to extract generous nonrefundable retainers from cautious corporations.
A well-publicized example involved Skadden, Arps, Slate, Meagher & Flom. For many years, named partner Joseph Flom was among the premier mergers-and-acquisitions lawyers in New York City, and at one point nearly 300 corporations were paying $150,000 annual retainers to Skadden Arps for the purpose of “sterilizing Joe”: that is, ensuring that Flom would not end up representing the enemy in a takeover battle. Retainers during this period sometimes accounted for more than 40 percent of Skadden’s income. 88 Although critics charged that the retainers were little more than protection money, Skadden justified its practice as a safeguard against sabotage. In Flom’s words, “If you didn’t have some way of assuring a guy was serious about hiring you, everybody would talk to you about some tiny problem and you’d be conflicted out of 532 everything.” 89 Skadden nevertheless came under fire for its policy of declining legitimate (not “sabotage”) matters in order to escape being conflicted out of more lucrative work later. To address these difficulties, the firm made a short-lived effort to “have its cake and eat it too” by accepting non-refundable retainers from clients but also asking them to waive conflicts of interest. This would permit Skadden to drop their matter, represent an adversary, and keep the money. In the face of public criticism, Skadden announced that it would change its practice and refund the year’s retainer if it invoked the waiver clause against a client. Skadden also encouraged retainer clients to utilize the firm rather than merely buying its inactivity. 90
The practices described above generally do not violate bar ethics codes. 91 Matters stand differently, however, in scenarios in which a lawyer withdraws from an active case in order to represent the adversary in a more profitable matter. Rule 1.16(b) permits withdrawal if it “can be accomplished without material adverse effect on the interests of the client.” Yet courts have consistently forbidden withdrawal for purposes of representing the client’s adversary. 92 The prohibition on withdrawal in such cases has become known as the “hot potato rule,” so named because of language in Picker International, Inc. v. Varian Associates, Inc. , 670 F. Supp. 1363, 1365 (N.D. Ohio 1987) : “A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client.” 93
Review the hypothetical involving Tidbit Technologies and Insatiable Industries in Problem 2 above.
a)At the time Insatiable Industries approaches you about the Tidbit takeover, your firm is representing Tidbit in a minor piece of trademark-infringement litigation against a snack food company with a similar name. The litigation is expected to generate less than $100,000 in fees, while the Insatiable Industries takeover would bring in millions. May your firm withdraw from the trademark case in order to represent Insatiable? The trademark case is at an early enough stage that withdrawal would not obviously affect trial preparation or expense.
b)You suspect that Tidbit Technologies retained your firm for the trademark litigation only because it anticipated a hostile takeover attempt, and wanted to create a conflict that would prevent your firm 533 from representing potential corporate raiders. In effect, Tidbit’s savvy general counsel appears to have “planted” the trademark case in order to neutralize you. May that affect your decision whether to withdraw?
c)When Tidbit Technologies engaged your firm for the trademark case, the retainer agreement included a clause in which Tidbit waived any conflicts of interest with “existing or new clients in any matter that is not substantially related to our work for you even if the interests of such clients in those other matters are directly adverse.” Does this permit you to represent Insatiable Industries in its attempt to take Tidbit over?
References: Rules 1.7 , 1.9 , 1.10 , 1.16 .
As we saw earlier in this chapter in connection with People v. Cole , when a lawyer is disqualified from a representation because of a conflict, the disqualification is typically imputed to the lawyer’s entire law firm. This is true unless the conflict involves a former client and the disqualified lawyer is “timely screened” as provided in Rule 1.10. That Rule provides:
Rule 1.10—Imputation of Conflicts of Interest
(a)While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1)the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2)the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and
(i)the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii)written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and
(iii)certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at 534 reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
(b)When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1)the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2)any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c)A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d)The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. 94
1.Charles Wolfram has observed: “In the end there is little but the self-serving assurance of the screening-lawyer foxes that they will carefully guard the screened-lawyer chickens.” 95 Lawrence Fox, who led the (losing) fight against screening in the ABA House of Delegates, adds: “You tell me how an individual client is going to feel when that client learns that the lawyer is now working for the other side . . . I think this is the place where we’ve got to make a stand for loyalty.” 96 Do you agree?
2.On the other side of the argument, a California court observed that:
[T]he vicarious disqualification rule is based on a recognition of “the everyday reality that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’, confidential information.” . . . But several cases have questioned this paradigm as representing an outdated view of the practice of law. . . . The instant case illustrates the changing landscape of legal practice—we are concerned with the tainted attorney working in a different geographical office and in a different practice group from the attorneys with responsibility for the litigation. These are not attorneys discussing their cases regularly, passing each other in the hallways, or at risk of accidentally sharing client confidences at lunch. In a situation where the “everyday reality” is no longer that all attorneys in the 535 same law firm actually “work[ ] together,” there would seem to be no place for a rule of law based on the premise that they do. 97
The court cautioned that in some practice settings such as small firms, effective screening would be impossible, and in such settings vicarious disqualification is called for.
3.Notice that Rule 1.10 discusses “screening.” Per Rule 1.0(k), “screened” “denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect.”
4.In practice, firms that erect effective screens constantly look out for conflicts (by circulating a notice whenever a new matter is accepted), and they take the following actions as soon as a conflict is identified:
5.What are the incentives for law firms to violate or to comply with screening procedures? Would any external monitoring be effective in enforcement of screening procedures? Is it significant that in Oregon and Washington, which have had screening for decades, disciplinary agencies report no complaints or malpractice claims arising from the practice? 99
6.Based on her empirical study, Susan Shapiro argues that more liberal rules on screening may actually provide better protection to clients than more restrictive approaches. In jurisdictions that generally allow screens, there is typically more stringent internal and external regulation than in jurisdictions that generally do not permit them unless the client consents. 100 As Shapiro also notes, her data do not resolve the most crucial issues: 536 whether the additional regulation makes the screens sufficiently effective; and which rule best protects relatively powerless and unsophisticated clients who are most in need of protection. But she aptly concludes that sensible rule-making on this issue should be informed by better information about how screening and consent standards actually operate. 101
7.If you were a member of your state bar committee or supreme court considering whether to allow screening, which approach would you support? Why?
Senior Partner, an attorney at the law firm of Adams & Adams, represents Client One in Matter One. Junior Partner, another attorney in Adams & Adams, has acquired confidential information about Matter One and Client One, although Junior Partner has done no work on Matter One. Associate, a third attorney at Adams & Adams, has researched a purely legal issue connected with Matter One, but has acquired no confidential information about it.
Assume that your jurisdiction has adopted Rules 1.9 and 1.10, and answer the following questions:
a)Suppose Senior Partner moves to law firm Baker & Baker. Baker & Baker wishes to represent Client Two against Client One in Matter Two, which is substantially related to Matter One. May Senior Partner undertake the representation? May any lawyer in Baker & Baker undertake the representation? May Baker & Baker undertake the representation if Senior Partner is screened from the case?
b)Alternatively, suppose Junior Partner moves to Baker & Baker. As in the previous question, Baker & Baker wishes to represent Client Two against Client One in Matter Two, which is substantially related to Matter One. May Junior Partner undertake the representation? May any lawyer in Baker & Baker undertake the representation? May Baker & Baker undertake the representation if Junior Partner is screened from the case?
c)Alternatively, suppose Associate moves to Baker & Baker. As in the previous questions, Baker & Baker wishes to represent Client Two against Client One in Matter Two, which is substantially related to Matter One. May Associate undertake the representation? May any lawyer in Baker & Baker undertake the representation? May Baker & Baker undertake the representation if Associate is screened from the case?
d)Do any of your answers to the preceding question change if Baker & Baker was already representing Client Two against Client One 537 in Matter Two at the time that the Adams & Adams lawyer moved to Baker & Baker?
References: Rules 1.6 , 1.7 , 1.9 , 1.10 .
Now, suppose Senior Partner and Junior Partner both move to Baker & Baker. Their former firm, Adams & Adams, wishes to represent Client Two against former Client One in Matter Three, which is substantially related to Matter One. Senior Partner and Junior Partner were the only lawyers in Adams & Adams who acquired confidential information from Client One about Matter One.
a)May Adams & Adams undertake Matter Three?
b)For its own protection, Adams & Adams retains copies of all case files, including those of lawyers who have left the firm. When lawyers leave the firm, their digital case files are electronically sequestered and hard copies are transferred to a locked file cabinet to which only the managing partner of Adams & Adams has access. The managing partner’s responsibilities do not include representing clients. The firm’s file on Matter One includes case memoranda written by the firm’s lawyers, itemized billing sheets and time records, correspondence between Senior Partner and Client One as well as between Senior Partner and other parties involved in Matter One, and receipts for confidential client documents that have subsequently been returned to Client One. These receipts include identifying descriptions of the documents.
Do these facts affect your answer about whether Adams & Adams can accept Matter Three?
References: Rules 1.6 , 1.7 , 1.9 , 1.10 .
E.Conflicts and Government Lawyers
Rule 1.11 concerns an issue of considerable public importance: the “revolving door” between government and the private sector. For a substantial number of attorneys, a common career path involves acquiring expertise on the workings of government by working in government. With this expertise, many individuals leave public sector employment for positions as lobbyists, consultants, or practitioners in areas involving their prior government employer.
Over the last half-century, an increasing number of top ranking government officials have become “in-and-outers” rather than “sitters and stayers.” 102 Today, over 500 corporations, 2,000 public interest 538 organizations, and 85,000 unions and trade associations have lobbying offices. 103 Groups range in size and importance from the American Medical Association to the National Frozen Pizza Institute. Lobbying activities have similarly increased at the state and local level. The number of lawyers assisting these and other organizations has correspondingly escalated. “Governmental relations” work for private clients involves a broad variety of activities, such as providing advice about political and legislative developments; preparing testimony for legislative and administrative hearings; drafting statutes, regulations, and comments; negotiating government contracts; suing governmental bodies; maintaining contacts with public officials and agencies; and coordinating legal, political, and public relations strategies at state, local, and national levels. 104 Lawyers who cycle in and out of government form an important link between the public and private sectors.
Yet this linkage also poses obvious risks of conflicts. Virtually every state and locality has conflicts rules, and federal officials, including lawyers, are governed by a detailed set of criminal prohibitions in the Ethics in Government Act, 18 U.S.C. §§ 201–19 , strengthened in 2007 by the Honest Leadership and Open Government Act. This (and other) legislation prohibits certain post-executive and legislative branch representation activities for a specified period of time following departure from government service, and also makes it a criminal offense to divulge confidential information obtained in government service. 105 Within the ethics rules, such “revolving door” conflicts are addressed in Rule 1.11 and reflected in Rule 1.10, as well. 106 Rule 1.11 provides:
Rule 1.11—Special Conflicts of Interest for Former & Current Government Officers & Employees
(a)Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1)is subject to Rule 1.9(c); and
(2)shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
539(b)When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1)the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2)written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c)Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. . . . A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d)Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1)is subject to Rules 1.7 and 1.9; and
(2)shall not:
(i)participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii)negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially. . . .
———
540In Re: National Prescription Opiate Litigation Opinion and Order
U.S. District Court, Northern District of Ohio
Case No. 1:17-md-2804 (2019).
n Polster, J.:
Before the Court is Plaintiff City of Cleveland’s Motion to Disqualify Carole Rendon. . . . Plaintiffs seek disqualification of Carole Rendon and her firm, BakerHostetler, from this MDL for alleged violations of the Ohio Rules of Professional Conduct. Plaintiffs allege that Ms. Rendon violated one or both of Rules 1.11(a) and 1.11(c), and that disqualification is, therefore, an appropriate sanction. For the following reasons, Plaintiffs’ Motion is GRANTED-IN-PART.
I.
Upon leaving private practice, Carole Rendon served as the Executive Assistant U.S. Attorney for the U.S. Attorney’s Office for the Northern District of Ohio (“USAO”) from November 16, 2009–April 30, 2010. Beginning on May 1, 2010, she served as the First Assistant U.S. Attorney until February 5, 2016. On February 6, 2016, Ms. Rendon became The U.S. Attorney for the Northern District of Ohio and was unanimously confirmed by the U.S. Senate on July 12, 2016. On March 10, 2017, she was forced to resign by President Trump. On May 1, 2017, Ms. Rendon began working at BakerHostetler in the firm’s Cleveland office, and in June of 2017 she began representing Endo in this MDL. She was appointed Defendants’ Co-Liaison Counsel in December of 2017, shortly after the MDL was created.
During Ms. Rendon’s government service in the Northern District of Ohio, the USAO recognized the opioid epidemic as “an unprecedented health care and law enforcement crisis in Northern Ohio,” and in 2013—while Ms. Rendon was First Assistant U.S. Attorney—created the Heroin and Opioid Task Force (“Opioid Task Force” or “Task Force”). “The group brings together a diverse group of stakeholders, including law enforcement, the medical community, people in recovery, treatment professionals, judges, public health professionals, educators and others. It focuses on solutions from four perspectives: law enforcement; education and prevention; healthcare policy; and treatment.” . . . As a function of her appointed office, Ms. Rendon became the Chair of the Task Force on February 6, 2016 when she became the U.S. Attorney for the Northern District of Ohio.
On October 27, 2017 Cuyahoga County filed a lawsuit against Opioid Manufacturers, Distributors, and Pharmacies (collectively the “MDL Defendants”), including Endo. On December 5, 2017, the Judicial Panel on Multidistrict Litigation created In Re: National Prescription Opiate Litigation, for coordinated and consolidated pretrial proceedings before this Court. Shortly thereafter, on December 20, 2017, Summit County and the City of Akron filed their own lawsuit against the MDL 541Defendants, including Endo. Finally, on March 6, 2018, the City of Cleveland filed its suit against the MDL Defendants, including Endo. Plaintiff Cuyahoga County first raised the issue of Ms. Rendon’s potential disqualification from the MDL in an August 3, 2018 letter to Ms. Rendon. After the parties failed to reach a resolution, on January 10, 2019, Cleveland filed the present Motion to Disqualify Ms. Rendon. . . .
III.
The Court thus examines whether Ms. Rendon violated one of the Ohio Rules of Professional Conduct. First, Plaintiffs assert that Ms. Rendon violated Rule 1.11(a), which provides in relevant part:
A lawyer who has formerly served as a public officer or employee of the government shall . . . not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
Ohio R. Prof. Conduct 1.11(a) (emphasis in original). There is no doubt that Ms. Rendon participated personally and substantially as a public officer on the Task Force. . . .
The Court finds that Rule 1.11(a) is not implicated here. At its core, Rule 1.11(a) is a rule that prevents “side-switching” when a government lawyer goes into private practice (or vice versa). To allow a government lawyer to leave public service for private practice and also prevent the government lawyer from, in fact, switching sides, the rule expressly requires that the “matter” that the government lawyer worked on be the same, instead of merely “substantially related” as required by Rule 1.9. Compare Ohio R. Prof. Conduct 1.9(a) (lawyer “shall not thereafter represent another person in the same or a substantially related matter”), with Ohio R. Prof. Conduct 1.11, Cmt. [10] (providing guidance for “determining whether two particular matters are the same,” but not for determining whether they are substantially related). . . .
In arguing that the Opioid Task Force and the Opioid Multidistrict Litigation are the same “matter,” Plaintiffs’ reading of Rule 1.11(c) [sic107] sweeps too broadly. The Opioid Task Force is a group of agencies, organizations, and individuals with a stake in their community that share a common goal of finding a multi-pronged solution to the opioid crisis. The cases brought by Track One Plaintiffs are civil actions brought against manufacturers (including Endo), distributors and retailers of prescription opiates alleging liability for the cost of addressing the opioid public health crisis. Plaintiffs allege false marketing and inadequate monitoring of suspicious order reports. They cannot be deemed the “same matter” within a fair construction of the rule. Nor did Ms. Rendon “switch sides” in this case. Ms. Rendon was a lawyer for the U.S. Government. In that role, as part of the Opioid Task Force, Ms. Rendon did not conduct 542any investigation into any conduct of Endo, nor was she involved in any claim or case against Endo. . . .
Therefore, the Court concludes that the Opioid Task Force and the Opioid Multidistrict Litigation are not the same matter. . . .
IV.
Plaintiffs also assert that Ms. Rendon violated Rule 1.11(c), which provides:
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this rule, the term “confidential government information” means information that has been obtained under governmental authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and that is not otherwise available to the public.
Ohio R. Prof. Conduct 1.11(c) (emphasis in original). Plaintiffs assert that Ms. Rendon received confidential government information about Plaintiffs City of Cleveland and Cuyahoga County through her role as the head of the Opioid Task Force. In pleadings and through Ms. Rendon’s testimony at the February 6, 2019 hearing, Endo denied this was the case. At the conclusion of the February 6, 2019 hearing, the Court stated that it would ask the Department of Justice to conduct an investigation into this issue. By letter dated March 15, 2019 from Senior Trial Counsel, Lisa A. Olson, (Exh. A) the Department of Justice responded that:
Cuyahoga County and Cleveland law enforcement officials shared nonpublic information with Ms. Rendon and her direct reports as a result of the cooperation among federal, state, and local law enforcement agencies in combatting the opioid crisis. This information was conveyed primarily in meetings (e.g., “sidebars”) and communications arising out of the Task Force, and was shared in a spirit of confidence and trust. The information concerned the inadequate staffing levels, funding deficiencies, strategies, initiatives, operations, and allocation of resources at the county and local levels for dealing with the opioid crisis.
The Court concludes, based upon its understanding of this litigation, that this confidential non-public information may go to the heart of Plaintiffs’ damages claims, and this information, if used by Endo could, “materially prejudice” Cleveland and Cuyahoga County. The Court, therefore, further concludes that it would not be appropriate for Ms. Rendon to 543continue to represent Endo in the litigation brought by the City of Cleveland and Cuyahoga County.
Plaintiffs also ask that Ms. Rendon’s firm, BakerHostetler, be disqualified “unless and until it complies with the screening requirements set forth in Rules 1.11(b) and 1.11(c).” Rule 1.11(b) applies only when a lawyer is disqualified per subsection (a), which is not the case here. Rule 1.11(c) provides that: “A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.” Ohio R. Prof. Cond. 1.11(c) (emphasis added). Attorneys from BakerHostetler have worked with Ms. Rendon on the Opioid Litigation since she began representing Endo in June of 2017. There is no way for BakerHostetler to timely screen Ms. Rendon at this point, almost two years later. The Court must, therefore, also disqualify BakerHostetler to the same extent that it has disqualified Ms. Rendon. Specifically, BakerHostetler may not represent Endo in the litigation brought by the City of Cleveland and Cuyahoga County, but may continue to represent Endo in any other case.
V.
. . . . [T]he Court believes Ms. Rendon is an excellent attorney and that she served the U.S. Attorney’s Office with great distinction. Her work on the Consent Decree will benefit the citizens of this area for years to come. There has never been a litigation such as the Opioid MDL, where now approximately 1,600 cities and counties have sued the manufacturers and distributors of prescription opioids, along with a number of pharmacies. Plaintiffs have asserted novel legal theories and are seeking to recoup billions of taxpayer dollars which have been spent, and will continue to be spent, in dealing with this epidemic. As detailed above, the Court concludes that under the unique facts of this case, it is not appropriate for Ms. Rendon, or her firm, to represent Endo in a trial against the City of Cleveland or Cuyahoga County.
However, the Court is also sympathetic to the policy implication raised by the amicus Letter of Former Attorneys General. The Letter addresses the same policy consideration considered by Comment [4] of the Ohio Rules of Professional Conduct. Comment [4] states:
This rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. . . . On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards.
544Ohio R. Prof. Conduct, Cmt. [4]. Ms. Rendon’s work on behalf of the United States and specifically her work on the Opioid Task Force should not, and indeed does not, disqualify her and her firm from serving in a leadership capacity in the Opioid MDL or participating in any trial involving claims by other cities and counties. It is only the confidential information she received specific to the City of Cleveland and Cuyahoga County that disqualify her and her firm from participation in those two cases.
Accordingly, Plaintiffs’ Motion to Disqualify is GRANTED-IN-PART. IT IS SO ORDERED.
1.This is not the only disqualification motion in the vast and extraordinarily high-stakes multidistrict opiates litigation, which consolidates more than 2,600 cases initiated by counties, cities, tribes, and municipalities. In September 2019, several defendant companies moved that Judge Polster recuse himself from the MDL on grounds of bias, as he pressed hard for the parties to settle and made statements about the human costs of the opioid crisis. Judge Polster declined the motion. 108 Legal ethics and mass tort expert Howard Erichson commented: “After nearly two years of litigation, and on the eve of trial, the defendants decided they didn’t want the judge because they didn’t get favorable rulings. That doesn’t work.” 109 The judge had scheduled two “bellwether” trials of county lawsuits against opioid manufacturers; after the failed motion to recuse, the cases settled on the eve of trial. As this book goes to press, Judge Polster has scheduled two more “bellwether” trials, against pharmaceutical chain defendants.
2.Note that Rule 1.11(a) bars lawyers from accepting private employment in a matter in which they participated personally and substantially as public employees, even if their representation would not be adverse to their former employer’s. This prohibition is broader than the general conflicts rules regarding successive representation. (Recall, the general rule, Rule 1.9(a), bars representation on “the same or a substantially related matter,” only if the new client’s interests are “materially adverse” to the former client’s interests.) What is the rationale for broader coverage?
You are a fifth-year associate at a law firm in the capital city of your state. Before joining the firm, you served for two years in state government in the Antitrust Division of the state attorney general. A 545 major assignment during that time was completion of a special position paper outlining the AAG’s views on the state’s nursing home industry. In particular, the paper’s objective was to justify a more permissive policy regarding horizontal combinations in the industry. To complete the paper, you reviewed a broad range of economic and legal literature, interviewed various nursing home company executives, and consulted with several economists.
The arrival of a new Attorney General (from the opposite political party of the incumbent) prompted your departure from the Division. The current leadership has inaugurated changes in antitrust policy. Accordingly, the Antitrust Division recently filed suit opposing a merger of two state nursing home companies, who have now expressed interest in retaining your firm.
a)Under what circumstances may you participate in the litigation? Under what circumstances may your firm do so?
b)If you became involved in the case, what, if any, ex parte calls to friends in the Antitrust Division would be permissible?
References: Rules 1.11 , 3.5 , and 3.9 ; see also Rules 1.9 , 1.10 , and 8.4 .
F.Conflict Rules: Prospective Clients
Along with current and former clients, the Rules endeavor to protect prospective clients who may reveal confidential information in the midst of an initial consultation—but who may not, for whatever reason, subsequently enter into a client-lawyer relationship. Until the 2002 amendments to the Model Rules, there was no explicit rule protecting prospective clients against potential abuse. Now, Rule 1.18 supplies relevant authority:
Rule 1.18—Duties to Prospective Client
(a)A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b)Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
(c)A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
546(d)When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1)both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2)the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i)the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii)written notice is promptly given to the prospective client.
Note that the protections in Rule 1.18 closely track the protections Rule 1.9 affords to former clients. As in Rule 1.9 , the lawyer who has received confidential information from a prospective client may not represent an adverse party in the same or a substantially related matter. Likewise, as in Rule 1.10 , if the lawyer is disqualified, the disqualification is imputed to her entire law firm unless the lawyer is screened. As in conflicts under Rule 1.9, the prospective client can waive the Rule’s protections. The only substantive difference in the protections is an additional requirement that the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.”
1.In the sparse case law on Rule 1.18 , a common scenario is divorce actions, in which both spouses ask the same lawyer to represent them (perhaps because both know the lawyer), and the lawyer chooses to represent one. The lawyer may have learned information from both, and she faces a motion to disqualify by the spouse the lawyer chose not to represent. The question under Rule 1.18(c) is whether that information is “significantly harmful” to the spouse moving for disqualification. For example, in a post-divorce custody dispute, husband Timothy told lawyer Heather “everything he knew regarding the children and his concerns about his former wife,” but eventually retained other counsel. 110 When it turned out that another lawyer in Heather’s firm was representing Timothy’s ex-wife, the firm was disqualified, even though Timothy testified that he had not told Heather anything that would be harmful to him. The Arkansas Supreme Court reasoned that prospective clients are not in a position to know which pieces 547 of information could be significantly harmful. 111 In other cases, courts have found that merely speculative harms are not enough for disqualification. 112
2.One crucial question is what counts as “consulting” with a lawyer, thereby rendering the consulter a prospective client? For example, if someone responds to lawyer advertising, is that response a “consultation”? Comment 2 to Rule 1.18 explains that that will depend on whether the advertisement “specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations.” If so, it is likely to count as a consultation. If, by contrast, the advertisement “merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest,” then someone who unilaterally provides information to the lawyer is not a prospective client. That person has no “reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.”
If the prospective client contacts the lawyer by telephone, the lawyer can end the conversation before the client shares any confidences. But what if the prospective client responds to a lawyer’s advertisement with an email that reveals sensitive information? In such a case, what counts as taking “reasonable measures” to avoid exposure to disqualifying information? Must the lawyer delete the email without reading it? If the lawyer reads it, is he or she disqualified from representing the sender’s adversary? Comment 2 suggests that the answer is “no,” provided the advertisement did not solicit such information. But why not? Should prospective clients be expected to know the finer points of rules governing confidentiality and formation of client-lawyer relationships? Why wouldn’t a client who encounters even a minimum lawyer advertisement stating credentials and contact information have a “reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship”? Why else is the lawyer advertising?
On the other hand, if unilateral communication is enough to trigger Rule 1.18(c) disqualification, a strategic party might send emails containing confidential information to every family lawyer in the county to conflict them out of representing the spouse in an upcoming divorce. Comment 2 to the Rule aims to address this by clarifying that a “person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client. ’ ”
3.What if a lawyer is active on social media? An ethics opinion of the D.C. Bar explains:
The guidance of Rule 1.18 is of particular importance in social networking, where lawyers may self-identify themselves as attorneys and where, most likely, those “connected” to the lawyer will be aware that the user is an attorney; however, without more, 548 the mere knowledge that a friend is an attorney does not give rise to a reasonable expectation that interactions with that attorney would create a prospective or actual client relationship, or its attendant duty of confidentiality. 113
On the other hand, the opinion also cautions that lawyers must “avoid the acquisition of uninvited information through social media sites that could create actual or perceived conflicts of interest for the lawyer or the lawyer’s firm. Caution should be exercised when stating positions on issues.” For those lawyers who are used to lively give-and-take on their social media sites, what guidance does this opinion offer? If a Facebook friend who lives in your state imprudently posts some sensitive information to all her “friends” and makes noises about suing somebody, can you join in the extended back-and-forth chatter among the “friends,” or would that run the risk of establishing a reasonable expectation that the poster is now your prospective client?
A final constellation of conflicts involves conflicts between the lawyer and client. Lawyers undeniably owe their clients a duty of loyalty. As such, they must always act in a manner consistent with the client’s best interests, or, as Rule 1.7, comment 10 puts it: “The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.” Furthermore, lawyers must abide by Rule 1.7(a)(2), which advises that a lawyer shall not represent a client if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer,” unless the client gives written informed consent, and “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation.” Finally, when it comes to lawyer-client relations, Rule 1.8 offers a menu of specific admonitions, on matters ranging from lawyer-client business transactions (which, as noted below, are heavily regulated), to the solicitation of gifts from a client (a no-no), to the provision of financial assistance to a client (only very narrowly allowed), to the forging of aggregate settlements (also regulated), to sexual relations with a client (also strictly forbidden).
Like many things, these obligations are easy to articulate but sometimes difficult to operationalize. Exploring times when lawyers’ and clients’ interests frequently conflict, this Section offers guidance on how lawyers can chart these various minefields.
1.Fee-Related Conflicts in Public Interest Cases
Disagreements and misunderstandings concerning fees—what’s earned, what’s owed, and what’s fair—constitute the most frequent source of dispute between attorneys and clients. Accordingly, we consider the fee issue in detail, in Chapter 13, Section E. Here though, we consider 549 the related question of fee-related conflicts in public interest cases, as these conflicts have become particularly relevant owing to a series of controversial Supreme Court opinions.
Supreme Court of the
United States
475 U.S. 717 (1986)
.
n Mr . J ustice Stevens delivered the opinion of the Court.
The Civil Rights Attorney’s Fees Awards Act of 1976 (Fees Act) provides that “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee” in enumerated civil rights actions. . . . In this case, we consider the question whether attorney’s fees must be assessed when the case has been settled by a consent decree granting prospective relief to the plaintiff class but providing that the defendants shall not pay any part of the prevailing party’s fees or costs. We hold that the District Court has the power, in its sound discretion, to refuse to award fees.
I
The petitioners are the Governor and other public officials of the State of Idaho responsible for the education and treatment of children who suffer from emotional and mental handicaps. Respondents are a class of such children who have been or will be placed in petitioners’ care.
On August 4, 1980, respondents commenced this action by filing a complaint against petitioners in the United States District Court for the District of Idaho. The factual allegations in the complaint described deficiencies in both the educational programs and the health care services provided respondents. . . . The complaint prayed for injunctive relief and for an award of costs and attorney’s fees, but it did not seek damages.
On the day the complaint was filed, the District Court . . . appoint[ed] Charles Johnson as [respondents’] next friend for the sole purpose of instituting and prosecuting the action. At that time Johnson was employed by the Idaho Legal Aid Society, Inc., a private, nonprofit corporation that provides free legal services to qualified low-income persons. Because the Idaho Legal Aid Society is prohibited from representing clients who are capable of paying their own fees, it made no agreement requiring any of the respondents to pay for the costs of litigation or the legal services it provided through Johnson. Moreover, the special character of both the class and its attorney-client relationship with Johnson explains why it did not enter into any agreement covering the various contingencies that might arise during the course of settlement negotiations of a class action of this kind. . . .
In March 1983, one week before trial, petitioners presented respondents with a new settlement proposal. As respondents themselves 550 characterize it, the proposal “offered virtually all of the injunctive relief [they] had sought in their complaint.” The Court of Appeals agreed with this characterization, and further noted that the proposed relief was “more than the district court in earlier hearings had indicated it was willing to grant.” As was true of the earlier partial settlement, however, petitioners’ offer included a provision for a waiver by respondents of any claim to fees or costs. Originally, this waiver was unacceptable to the Idaho Legal Aid Society, which had instructed Johnson to reject any settlement offer conditioned upon a waiver of fees, but Johnson ultimately determined that his ethical obligation to his clients mandated acceptance of the proposal. The parties conditioned the waiver on approval by the District Court.
After the stipulation was signed, Johnson filed a written motion requesting the District Court to approve the settlement “except for the provision on costs and attorney’s fees,” and to allow respondents to present a bill of costs and fees for consideration by the court. At the oral argument on that motion, Johnson contended that petitioners’ offer had exploited his ethical duty to his clients—that he was “forced,” by an offer giving his clients “the best result [they] could have gotten in this court or any other court,” to waive his attorney’s fees. The District Court, however, evaluated the waiver in the context of the entire settlement and rejected the ethical underpinnings of Johnson’s argument. . . . The Court of Appeals . . . after ordering preliminary relief . . . invalidated the fee waiver and left standing the remainder of the settlement; it then instructed the District Court to “make its own determination of the fees that are reasonable” and remanded for that limited purpose.
In explaining its holding, the Court of Appeals emphasized that Rule 23(e) of the Federal Rules of Civil Procedure gives the court the power to approve the terms of all settlements of class actions . . . The court added that “[w]hen attorney’s fees are negotiated as part of a class action settlement, a conflict frequently exists between the class lawyers’ interest in compensation and the class members’ interest in relief.” “To avoid this conflict,” the Court of Appeals relied on Circuit precedent which had “disapproved simultaneous negotiation of settlements and attorney’s fees” absent a showing of “unusual circumstances.” In this case, the Court of Appeals found no such “unusual circumstances” and therefore held that an agreement on fees “should not have been a part of the settlement of the claims of the class.” . . . We now reverse.
II
. . . To begin with, the Court of Appeals’ decision rested on an erroneous view of the District Court’s power to approve settlements in class actions. Rule 23(e) wisely requires court approval of the terms of any settlement of a class action, but the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed. . . . The question we must decide, therefore, is whether the 551 District Court had a duty to reject the proposed settlement because it included a waiver of statutorily authorized attorney’s fees.
That duty, whether it takes the form of a general prophylactic rule or arises out of the special circumstances of this case, derives ultimately from the Fees Act rather than from the strictures of professional ethics. Although respondents contend that Johnson, as counsel for the class, was faced with an “ethical dilemma” when petitioners offered him relief greater than that which he could reasonably have expected to obtain for his clients at trial (if only he would stipulate to a waiver of the statutory fee award), and although we recognize Johnson’s conflicting interests between pursuing relief for the class and a fee for the Idaho Legal Aid Society, we do not believe that the “dilemma” was an “ethical” one in the sense that Johnson had to choose between conflicting duties under the prevailing norms of professional conduct. Plainly, Johnson had no ethical obligation to seek a statutory fee award. His ethical duty was to serve his clients loyally and competently. Since the proposal to settle the merits was more favorable than the probable outcome of the trial, Johnson’s decision to recommend acceptance was consistent with the highest standards of our profession. The District Court, therefore, correctly concluded that approval of the settlement involved no breach of ethics in this case. . . . For reasons set out below, we are not persuaded that Congress has commanded that all such settlements must be rejected by the District Court. Moreover, on the facts of record in this case, we are satisfied that the District Court did not abuse its discretion by approving the fee waiver.
III
The text of the Fees Act provides no support for the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits. . . . In fact, we believe that a general proscription against negotiated waiver of attorney’s fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement. . . .
Most defendants are unlikely to settle unless the cost of the predicted judgment, discounted by its probability, plus the transaction costs of further litigation, are greater than the cost of the settlement package. If fee waivers cannot be negotiated, the settlement package must either contain an attorney’s fee component of potentially large and typically uncertain magnitude, or else the parties must agree to have the fee fixed by the court. Although either of these alternatives may well be acceptable in many cases, there surely is a significant number in which neither alternative will be as satisfactory as a decision to try the entire case. . . . 30
552IV
. . . Petitioners and the amici who support them never suggest that the district court is obligated to place its stamp of approval on every settlement in which the plaintiffs’ attorneys have agreed to a fee waiver. The Solicitor General, for example, has suggested that a fee waiver need not be approved when the defendant had “no realistic defense on the merits,” or if the waiver was part of a “vindictive effort . . . to teach counsel that they had better not bring such cases.”
We find it unnecessary to evaluate this argument, however, because the record in this case does not indicate that Idaho has adopted such a statute, policy, or practice. Nor does the record support the narrower proposition that petitioners’ request to waive fees was a vindictive effort to deter attorneys from representing plaintiffs in civil rights suits against Idaho. . . . 34 In this case, the District Court did not abuse its discretion in upholding a fee waiver which secured broad injunctive relief, relief greater than that which plaintiffs could reasonably have expected to achieve at trial.
The judgment of the Court of Appeals is reversed.
n Justice Brennan , with whom Justice Marshall and Justice Blackmun join, dissenting.
Ultimately, enforcement of the laws is what really counts. It was with this in mind that Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976. Congress authorized fee shifting to improve enforcement of civil rights legislation by making it easier for victims of civil rights violations to find lawyers willing to take their cases. Because today’s decision will make it more difficult for civil rights plaintiffs to obtain legal assistance, a result plainly contrary to Congress’ purpose, I dissent.
I
. . . It seems obvious that allowing defendants in civil rights cases to condition settlement of the merits on a waiver of statutory attorney’s fees will diminish lawyers’ expectations of receiving fees and decrease the 553 willingness of lawyers to accept civil rights cases. Even the Court acknowledges “the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers’ expectations of statutory fees in civil rights cases.” The Court tells us, however, that “[c]omment on this issue” is “premature at this juncture” because there is not yet supporting “documentation.” The Court then goes on anyway to observe that “as a practical matter the likelihood of this circumstance arising is remote.”
I must say that I find the Court’s assertions somewhat difficult to understand. To be sure, the impact of conditional fee waivers on the availability of attorneys will be less severe than was the restriction on fee awards created in Alyeska. However, that experience surely provides an indication of the immediate hardship suffered by civil rights claimants whenever there is a reduction in the availability of attorney’s fee awards. . . . And, of course, once fee waivers are permitted, defendants will seek them as a matter of course, since this is a logical way to minimize liability. . . .
This all seems so obvious that it is puzzling that the Court reaches a different result. The Court’s rationale is that, unless fee waivers are permitted, “parties to a significant number of civil rights cases will refuse to settle. . . .” This is a wholly inadequate justification for the Court’s result.
First, the effect of prohibiting fee waivers on settlement offers is just not an important concern in the context of the Fees Act. I agree with the Court that encouraging settlements is desirable policy. But it is judicially created policy, applicable to litigation of any kind and having no special force in the context of civil rights cases. The congressional policy underlying the Fees Act is, as I have argued throughout, to create incentives for lawyers to devote time to civil rights cases by making it economically feasible for them to do so. . . .
Second, even assuming that settlement practices are relevant, the Court greatly exaggerates the effect that prohibiting fee waivers will have on defendants’ willingness to make settlement offers. This is largely due to the Court’s failure to distinguish the fee waiver issue from the issue of simultaneous negotiation of fees and merits claims. The Court’s discussion mixes concerns over a defendant’s reluctance to settle because total liability remains uncertain with reluctance to settle because the cost of settling is too high. However, it is a prohibition on simultaneous negotiation, not a prohibition on fee waivers, that makes it difficult for the defendant to ascertain his total liability at the time he agrees to settle the merits. . . .
The Court asserts, without factual support, that requiring defendants to pay statutory fee awards will prevent a “significant number” of settlements. It is, of course, ironic that the same absence of “documentation” which makes comment on the effects of permitting fee waivers “premature at this juncture,” does not similarly affect the Court’s 554 willingness to speculate about what to expect if fee waivers are prohibited. Be that as it may, I believe that the Court overstates the extent to which prohibiting fee waivers will deter defendants from making settlement offers. Because the parties can negotiate a fee (or a range of fees) that is not unduly high and condition their settlement on the court’s approval of this fee, the magnitude of a defendant’s liability for fees in the settlement context need be neither uncertain nor particularly great. . . .
I would, on the other hand, permit simultaneous negotiation of fees and merits claims, since this would not contravene the purposes of the Fees Act. . . .
1.How should public interest attorneys handle fee negotiations? According to the majority in Evans v. Jeff D. , a settlement offer requiring a waiver of attorney fees presents no ethical conflict since lawyers are under no ethical obligation to seek statutory fees. Is this view convincing, or should the Court have considered lawyers’ responsibilities to their employers or to other nonpaying clients, whose representation is subsidized in part by statutory fee awards? For example, Charles Silver argues that the fee-waiver issue reflects a tradeoff: Some victims who can sue do better if waivers are allowed, while others denied representation do worse. In Silver’s view, the majority opinion in Jeff D. is problematic in that it “cites no evidence tending to show that the former gain more than the latter lose, and offers no guidance on how to compare the effects on the two groups.” 114 If Silver is right, how could the effects be compared?
2.At the close of his dissent in Evans v. Jeff D. , Justice Brennan highlights that several state bars “have already declared it unethical for defense counsel to seek fee waivers” as a condition of settlement, and he urges more state bars to follow suit. 475 U.S. at 765 (Brennan, J., dissenting). Some states, including New Jersey, have taken Justice Brennan up on that invitation. In the frank words of the New Jersey Supreme Court:
When a plaintiff is seeking monetary damages in fee-shifting cases, a defendant has no legitimate interest in how the plaintiff and attorney divvy up the settlement. In such circumstances, a defendant’s demand that a plaintiff’s attorney waive her statutory fee as the price of a settlement is not only an unwarranted intrusion into the attorney-client relationship, but a thinly disguised ploy to put a plaintiff’s attorney at war with her client. 115
Do you agree or disagree with the New Jersey Supreme Court’s analysis?
3.At the conclusion of his Jeff D . dissent, Justice Brennan also suggests that public interest organizations might obtain agreements from their clients not to waive fees, up front, in the lawyer-client retention agreement. 475 U.S. 555 at 765 (Brennan, J., dissenting). The problem is that these waivers are not necessarily permissible. Several ethics committees have considered the issue and have reached mixed results. 116 If you were a member of a state bar ethics committee, would you permit these waivers? If you were a public interest lawyer, would you insist upon them?
4.For over two decades, New Jersey prevented the simultaneous negotiation of fees and merits in certain public interest cases; lawyers had to first settle the merits of a dispute and then, later, they had to negotiate concerning the plaintiffs’ lawyers’ entitlement to statutory compensation. 117 The goal of this restriction was to insulate public interest lawyers from the “pressure of having to reduce their fees to bring a settlement within reach, particularly in those cases where damages are low and attorneys’ fees are high.” 118
However, in Pinto v. Spectrum Chemicals & Laboratory Products , 985 A.2d 1239 (N.J. 2010) , the New Jersey Supreme Court discarded that decades-old prohibition on simultaneous negotiation of fees and merits. In so doing, the Court noted that no other jurisdiction barred such simultaneous negotiation, and that half-a-dozen public interest firms had filed briefs as amici curiae in the case arguing that the ban was unnecessary and counterproductive because it “stifl[ed] settlement.” It had this effect, amici explained, because in the real world, “defense counsel will seldom agree to enter into a settlement that does not resolve all outstanding issues, including fees.” 119 Ultimately, the court ruled, the bifurcation rule “was intended to protect public-interest law firms and their clients, but, in reality, its application may do more harm than good.” 120 Do you agree with the Pinto court’s analysis? Should lawyers be permitted to negotiate merits and fees simultaneously?
5.If public interest attorneys are pressured into accepting fee waivers or discounted fees in some cases, should they be allowed to seek additional payments in other cases to compensate? In determining statutory fees, courts generally take as a starting point the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This “lodestar” amount is then sometimes adjusted by a “multiplier” in light the risk of defeat. 121
556In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air , 483 U.S. 711 (1986) , a divided Court considered risk multipliers to increase statutory fees in the context of the Clean Air Act. Ultimately, in a very narrow opinion, a plurality of the Court declined to allow an enhancement that would have provided increased compensation to the plaintiffs’ lawyers above their lodestar—but the Court left open the idea that risk multipliers might be permissible in some cases.
Five years later, a more conservative Court revisited the issue and, in City of Burlington v. Dague , 505 U.S. 557 (1992) , absolutely abolished any risk multiplier under federal fee-shifting statutes. The Court reasoned that the statutory language authorized fees to be awarded only to “prevailing parties” and awarding “a contingency enhancement under a fee-shifting statute would in effect pay for the attorney’s time (or anticipated time) in cases where his client does not prevail.” 122
In dissent, Justice Blackmun took a different and more pragmatic view. He noted:
Congress’ purpose in adopting fee-shifting provisions was to strengthen the enforcement of selected federal laws by ensuring that private persons seeking to enforce those laws could retain competent counsel. In particular, federal fee-shifting provisions have been designed to address two related difficulties that otherwise would prevent private persons from obtaining counsel. First, many potential plaintiffs lack sufficient resources to hire attorneys. Second, many of the statutes to which Congress attached fee-shifting provisions typically will generate either no damages or only small recoveries; accordingly, plaintiffs bringing cases under these statutes cannot offer attorneys a share of a recovery sufficient to justify a standard contingent-fee arrangement. The strategy of the fee-shifting provisions is to attract competent counsel to selected federal cases by ensuring that if they prevail, counsel will receive fees commensurable with what they could obtain in other litigation. If federal fee-bearing litigation is less remunerative than private litigation, then the only attorneys who will take such cases will be underemployed lawyers-who likely will be less competent than the successful, busy lawyers who would shun federal fee-bearing litigation-and public interest lawyers who, by any measure, are insufficiently numerous to handle all the cases for which other competent attorneys cannot be found.
In many cases brought under federal statutes that authorize fee shifting, plaintiffs will be unable to ensure that their attorneys will be compensated for the risk that they might not prevail. This will be true in precisely those situations targeted by the fee-shifting statutes—where plaintiffs lack sufficient funds to hire an attorney on a win-or-lose basis and where potential damages awards are insufficient to justify a standard contingent-fee arrangement. In these situations, unless the fee-shifting statutes are construed to 557 compensate attorneys for the risk of nonpayment associated with loss, the expected return from cases brought under federal fee-shifting provisions will be less than could be obtained in otherwise comparable private litigation offering guaranteed, win-or-lose compensation. Prudent counsel, under these conditions, would tend to avoid federal fee-bearing claims in favor of private litigation, even in the very situations for which the attorney’s fee statutes were designed. This will be true even if the fee-bearing claim is more likely meritorious than the competing private claim.
505 U.S. at 568–69 (Blackmun, J., dissenting).
In interpreting their own state statutes, some state courts have explicitly sided with the Dague dissent and have continued to add a multiplier to certain statutory fees to compensate for the risk of non-recovery. 123 Which approach makes sense as a policy perspective?
6.More recent Supreme Court decisions have, like Jeff D. , made it more difficult for civil rights attorneys to recover compensation for their efforts. Most notably, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598 (2001) , a closely divided Court held that if a defendant voluntarily grants relief before judgment, the plaintiff is not entitled to attorneys’ fees under statutes authorizing fees for “prevailing parties” unless the plaintiff secured a court entry (such as a consent decree) memorializing the victory. In so doing, the Court relied on a formalistic dictionary definition of the term “prevailing party” as “one who has been awarded some relief by the court” and expressly rejected the catalyst theory, long accepted by lower courts, which had authorized fees as long as the litigation was the “catalyst” to relief. 532 U.S. at 603, 608–10 .
In dissent, Justice Ginsburg (joined by Justices Stevens, Souter, and Breyer) argued that the majority’s approach was inconsistent with past practice and legislative history. She also worried that the result would be used strategically (and cynically) by defendants who could force plaintiffs to engage in expensive pretrial work, and then abruptly implement the structural change desired by plaintiffs on the eve of trial, thus mooting the case and depriving the plaintiffs’ attorney of compensation. This would, in the long term, “impede access to the court for the less well heeled” and discourage suits by plaintiffs with claims that were meritorious but expensive to litigate. Id . at 623 (Ginsburg, J., dissenting).
The Buckhannon majority dismissed dissenters’ concerns as “speculative and unsupported by any empirical evidence.” Id . at 608 . But subsequent research has demonstrated precisely the results that the dissent feared. A systematic survey of some 222 public interest organizations found that over a third—both conservative and progressive organizations—reported that the Buckhannon decision had made it more difficult to pursue their goals. The study also reviewed a significant number of reported cases 558 in which the defendants’ strategic eleventh-hour capitulation deprived attorneys of fees and discouraged future enforcement actions. 124
How should the legal profession respond to the adverse effects of Buckhannon ? Is there any remedy apart from legislative modification of fee shifting statutes?
7.Can an ethical defense lawyer engage in “strategic capitulation” on the eve of trial in order to deprive an adversary of fair compensation for her efforts?
Your firm represents a migrant farmworkers’ organization in a lawsuit against the U.S. Department of Labor for failure to enforce certain protective legislation. You personally believe that the odds of obtaining any relief in court are only about 30 percent, but you hope that the costs and adverse publicity involved in litigation will prod the Department to reassess its enforcement priorities and settle the case on favorable terms. Your firm is currently subsidizing the lawsuit on a pro bono basis, but firm partners hope to recoup some expenses under a federal fee-shifting statute. That statute has been construed to authorize recovery of reasonable attorneys’ fees and litigation costs for a party who “prevails” in litigation, or who obtains substantial relief through settlement.
a)Your fondest hopes are realized. After two years of litigation, the Department comes up with what you believe is a reasonably adequate enforcement policy in light of its budget constraints. The changes exceed what you believe a court would order, and the Department’s lawyers assure you that if the case goes to trial, they will challenge the legal authority of any group to question Department priorities. As part of the proposed agreement, the Department agrees to a substantial attorneys’ fee award. They also invite your firm to serve as a paid consultant to the government in its development of future enforcement policy.
Delighted, you take this settlement offer to your clients. Much to your dismay, however, you find that the leaders of your client organization are unwilling to compromise in any respect and want to pursue their claim for full enforcement. When you share this unwelcome development with your law firm partners, they point out that they already have been subsidizing this litigation for an extended period. If the client refuses to settle, they wish to withdraw. When you convey this to your client’s leaders, they are incensed and intransigent. At this stage, they believe that withdrawal would substantially prejudice their interests. You have been unable to find qualified counsel willing to replace you. What are your options?
559b)Now suppose, alternatively, that your fondest hopes are not realized. Rather, the Department proposes to satisfy your client by vigorously enforcing regulations in only the regions that affect its members. Such a policy would leave 90 percent of the migrant workforce unprotected. Moreover, as part of the proposed agreement, defendants insist that you waive attorneys’ fees, agree not to represent other migrant groups, and return key documents related to the case.
Since you already have invested substantial efforts in trying to effect policy changes that will help migrant workers generally, you strongly oppose this settlement. You also believe that agreeing to the fee waiver will jeopardize funding for other pro bono matters at your firm. However, you suspect that the leaders of your client organization may prefer the settlement, particularly if you disclose that you believe the odds of ultimately gaining judicial relief are strongly against them. A victory against the Department could also build support for your clients’ organizing campaign and serve as a catalyst to further collective efforts.
What are your obligations to the client leadership, your law firm, and to migrant workers generally?
c)Once you have agreed to represent the farmworkers in this matter, are you obligated to press their claim until death do you part or until the Supreme Court denies certiorari? Could, or should, you have dealt with the problem by drafting a retainer agreement limiting your firm’s commitment? Would such a strategy institutionalize a double standard of representation, which reserves zealous advocacy only for clients who can afford it? Alternatively, would such retainers be the most practical way of encouraging private attorneys to accept pro bono cases that could become unexpectedly expensive and difficult?
References: Rules 1.2(a) , 1.4 , 1.7 , 1.8(e) , 1.16 , 5.1 .
The lawyer’s and the client’s interests also may collide concerning whether to accept a so-called “secret settlement.” A secret settlement is a settlement that contains a provision (often in the form of a non-disclosure agreement, or NDA) requiring the plaintiff to keep confidential the settlement amount, relevant terms, and, often, all facts of the underlying controversy. These secrecy provisions are often backed up by steep liquidated damage provisions, should the lawyer or client breach the agreement.
Some penalties for disclosure are draconian. For example, it recently came to light that the multi-million-dollar settlements that long shielded now-disgraced former Fox News Host Bill O’Reilly from accountability required those who had credibly accused O’Reilly of sexual harassment to “not talk about, write about, publicize, make available or otherwise disclose any information concerning . . . O’Reilly or any conduct or actions by O’Reilly.” Accusers further agreed that if they ever did disclose such 560 information, they would be forced to disgorge all money they had received, forfeit their right to any future payments, and pay O’Reilly’s legal fees. Accusers also agreed to turn over all evidence of O’Reilly’s harassment, including audio recordings and diaries—and one accuser went so far as to promise that she would disclaim the materials as “counterfeit and forgeries” if they ever became public. 125
Though most settlement agreements do not go as far as the contract above, settlements containing non-disclosure provisions are very common. And they are increasingly controversial, particularly when the plaintiff’s case involves criminal conduct or a public health hazard, and, as part of the settlement, the plaintiff agrees to keep that conduct or hazard confidential. As the above discussion of O’Reilly indicates, this concern is not academic. In the past, such provisions were used to shield clergy sexual abuse and the alleged repeated sexual misconduct of Leslie Moonves, Harvey Weinstein, R. Kelly, Roger Ailes, Bill Cosby, and the former USA Gymnastics national team doctor, Larry Nasser. Secret settlements were also used in cases involving hazards (or alleged hazards) such as the Dalkon Shield, Dow Corning’s silicone gel breast implants, pickup trucks made by Ford and General Motors, Zomax, opioids, and cigarettes. If these settlements had been public, scores of victims presumably would have been spared. 126 Indeed, just one commonly cited example includes the confidential resolution of personal injury claims arising from Firestone/Bridgestone tires on Ford sport utility vehicles (SUVs). Over 140 deaths have been linked to the public’s and regulators’ lack of awareness of that danger. 127
When offered a secret settlement, a plaintiff’s lawyer faces a vexing ethical dilemma. Recall from Chapter 5, per Rule 1.2(a) , that the client controls the decision whether to settle a civil controversy. That provision provides, in no uncertain terms: “[A] lawyer shall abide by a client’s decisions concerning the objectives of representation,” and “[a] lawyer shall abide by a client’s decision whether to settle a matter.” Clients often, quite reasonably, want secrecy—either because they are hesitant to broadcast what transpired, because an acquiescence to secrecy will hasten the litigation’s end, or because secrecy might sweeten the terms the defendant will offer to resolve the simmering controversy. (Eager to keep its misbehavior under wraps, a defendant is likely to offer more if 561 the settlement contains a secrecy provision.) But many lawyers don’t like sitting idly by in the face of grievous wrongdoing.
Underscoring this latter point, some lawyers who have agreed to secret settlements have come to bitterly regret that decision. One such lawyer is Massachusetts attorney Jeffrey Newman. In the early 2000s, Newman represented more than 200 people who alleged they were the victims of sexual abuse at the hands of a dozen priests in the Catholic Archdiocese of Boston. For a time, Newman was, as he put it, “in the clergy suit business wholesale.” However, in three early lawsuits against priests, including two early lawsuits involving now-disgraced Priest John J. Geoghan, Newman agreed to keep quiet about the victims’ charges in exchange for settlement money. (Ultimately, Geoghan, who was accused of molesting between 150 and 200 children, was defrocked and imprisoned for his crimes.) Of his decision to agree to secrecy, which apparently prolonged Geoghan’s time in the ministry, Newman told The New York Times : “It was a terrible mistake,” he said, “and I think people were harmed by it.” “I feel strongly,” he continued, “that I was complicit in not recognizing the significance and extent of the problem. I, among other lawyers, was part of the problem. It was probably one of the poorest decisions I made in my career.” 128 Others share the view that Newman (and other lawyers like him) were, in part, to blame: “If you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.” 129 Yet, there is a question of what even those lawyers who are dead set against secrecy clauses can do, in light of Rule 1.2(a) and other norms of fidelity, loyalty, and zealous advocacy.
Believing that the current Rules offer little protection to lawyers who oppose secret settlements, some favor amendments to the current regulatory architecture. Most notably, Richard Zitrin, a longtime critic of the status quo, proposes the following addition to Rule 3.2. 130 (Zitrin’s proposed section is underlined.):
Rule 3.2: Expediting Litigation
(a)A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
(b) A lawyer shall not participate in offering or making an agreement, whether in connection with a lawsuit or otherwise, to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s) .
562Comments
[1]Dilatory practices bring the administration of justice into disrepute. . . .
[2]Some settlements have been facilitated by agreements to limit the public’s access to information obtained both by investigation and through the discovery process. However, the public’s interest in being free from substantial dangers to health and safety requires that no agreement that prevents disclosure to the public of information that directly affects that health and safety may be permitted . . . .
[3]Subsection (b) does not require the disclosure of the amount of any settlement. Further, in the event of a danger to any particular individual(s) under Subsection (b), the rule is intended to require only that the availability of information about the danger not be restricted from any persons reasonably likely to be affected, and from any governmental regulatory or oversight agencies that would have a substantial interest in that danger. In such instances, the rule is not intended to permit disclosure to persons not affected by the dangers.
But Zitrin has, so far, had little success. The ABA Ethics 2000 Commission considered but rejected the proposed amendment, unanimously agreeing “that the ethics rules were not the vehicle for solving this problem.” 131 And, in general, the ABA has taken the position that changes are not necessary because “complaints and other documents that are a matter of public record typically contain sufficient details about the alleged hazard or harm to apprise the public of the risk, the source of the risk, and the harm it allegedly causes.” 132 Others, too, worry that such an amendment would erode client autonomy—that clients should be allowed to forge a settlement if they want to, and the Model Rules should not burden or interfere with that choice. 133 Finally, still other critics charge that outlawing secret settlements will have negative repercussions, including fueling lengthy discovery fights, encouraging document destruction, and deterring the timely and consensual resolution of disputes. 134
563Challenging the last point, reformers counter that some states (most notably, Florida, Washington, and Texas) curtail certain secret settlements via legislative prohibitions, and, in those states, there is no evidence that the legislation has prolonged litigation or deterred the consensual resolution of claims. 135 Proponents also point out that secrecy provisions impose problems of their own. Most notably, these provisions burden the legal system with unnecessarily duplicative actions and repetitive discovery, and their existence also likely leads to the perpetuation and under-deterrence of serious wrongdoing. 136
1.With respect to the priest sexual abuse controversy, then-Massachusetts District Attorney Martha Coakley charged that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially. 137 Is that criticism fair? If you had been in Jeffrey Newman’s shoes, what would you have done? What would the Rules have allowed you to do?
2.Similar finger-pointing followed the Firestone tire debacle, where accidental deaths “piled up” for nearly a decade before the public or regulators became aware that driving on certain Firestone tires posed a substantial risk. During those years—even as casualties mounted—Bridgestone/Firestone Inc. and Ford Motor Co. quietly resolved many wrongful death lawsuits with settlements that contained broad secrecy clauses, requiring the return of all discovery material and barring all parties from discussing aspects of each case.
Plaintiffs’ lawyer Rowe Brogdon of Statesboro, Georgia was involved in one of these lawsuits. Brogdon represented the parents of a nineteen-year-old victim, Daniel Paul Van Etten, a West Virginia University football player who was killed in 1997, after the left rear Firestone tire separated on his family’s Ford Explorer, causing the vehicle to flip and roll on highway I-95. Daniel’s parents ultimately accepted a secret settlement to resolve their son’s wrongful death claim, and, pursuant to its terms, returned all the documents the tire-maker had disclosed in discovery. Of his decision to assist Daniel’s parents in acquiescing to the secret settlement, Brogdon stated: “You’re there to represent your client, not . . . the world, although you wish you could. . . . Ethically, there’s no question that you have to do what’s in the best interest of the client.” 138 Do you agree with Brogdon’s assessment?
3.When it comes to secret settlements, the #MeToo movement is spurring at least limited change. Since early 2018, lawmakers in at least twenty-six states have introduced bills to restrict non-disclosure agreements in 564 instances of sexual harassment and assault. 139 One such effort is the STAND (Stand Together Against Non-Disclosure) Act, recently enacted in California. Inspired by the Harvey Weinstein scandal, the Act voids any provision in a settlement agreement that prevents the disclosure of factual information related to a claim filed in civil court or complaint filed with an administrative agency regarding sexual assault, sexual harassment, or workplace discrimination. While broad, the Act contains two important limitations. First, it applies to “claims filed in a civil action or a complaint filed in an administrative action.” Thus, the Act appears to permit non-disclosure provisions, to the extent the provisions are included in settlements forged prior to the initiation of formal litigation (such as where a demand letter has been sent but no claim has been filed with an administrative agency or in court). Second, the Act gives claimants the option of shielding their own identities and all facts that could lead to the discovery thereof.
The Act is popular in some quarters but has also been criticized for requiring victims to sacrifice for the public welfare. Thus, feminist lawyer Gloria Allred has called the Act “a mixed bag” that may well deter settlements and reduce the amount that women recover for claims of sexual harassment or assault. 140 Likewise, Stanford Law Professor Michele Landis Daubert has observed that “silence is pretty much the only thing the victim has to bargain with.” 141 Is the STAND Act nevertheless justified? Should it be broadened?
4.Would you support Richard Zitrin’s proposed amendment to Rule 3.2? Or, was the Ethics 2000 Commission right to reject the proposal?
5.Secret settlements raise the question of whether lawyers should be zealous, neutral partisans, assisting their clients at all cost—or whether lawyers owe obligations to others, including to the public at large. Where does a lawyer’s obligation begin and end?
You represent the plaintiff in what you believe to be the first product liability suit involving a new form of breast implants. Your client is alleging that the implants leaked and caused a life-threatening illness. During the discovery process, the defendant breast implant manufacturer offers to let you review certain internal memoranda and unpublished studies, on the condition that you agree not to reveal any of their contents. If you refuse to accept that condition, the defendant will fight your discovery request tooth-and-nail. After consulting with your client, you agree to the non-disclosure provision. The memoranda and studies reveal safety risks that you believe are not generally known, even by the Food and Drug Administration.
565The defendant has now offered your client an extremely generous settlement. One of its conditions is that you and your client may not disclose any information about the implants or rely on the information you have learned in any future litigation. Your client, who badly needs the money to cover her lost wages and medical expenses, wants to accept the settlement. What should you do? What can you do? 142
References: Rule 1.2(a) , 1.4 , 1.6(b)(1) , 2.1 , Preamble to the Rules.
Attorney buyout agreements raise somewhat similar concerns. Briefly, lawyer buyout agreements (sometimes called “lockout agreements”) are attempts by a party subject to repeated litigation to neutralize an experienced, well-informed adversary by paying off that adversary. Buyout agreements have an extended and unbecoming history. As Judge Jack Weinstein writes:
One of the earliest reported buyouts resulted from the deaths of more than 700 workers from silicosis caused by the construction of the Hawk’s Nest Tunnel in West Virginia in the early 1930s. The Union Carbide Corporation hired black migrant laborers to work on the project without taking the most minimal safety precautions. Despite substantial resistance by defendants, eventually hundreds of suits were filed. In what was then the longest trial in the country (five weeks), a team of plaintiffs’ lawyers presented 175 witnesses. Since the plaintiffs had limited resources, their attorneys made a considerable investment in the case, hoping that a favorable verdict would lead to a large number of settlements. The jury deadlocked.
Shortly before a second case was to come to trial, seventeen plaintiffs’ lawyers entered into an out-of-court settlement on behalf of 157 claimants. The claimants had asked for $4 million but were given $130,000, half of which went to the attorneys. It was later revealed that the plaintiffs’ attorneys had secretly signed a contract with the tunnel contractor that provided the attorneys, not the clients, with an additional $20,000 if they agreed not to engage in any further legal action. Upon learning of the agreement, the judge ordered that half that sum go to the plaintiffs. Nevertheless, the judge upheld a provision that the plaintiffs’ lawyers surrender all case records to the defendants. 143
566Obviously the Hawk’s Nest attorneys breached their ethical obligations by agreeing to a secret side deal with defendants. But what if they had disclosed the deal, and what if the deal benefited their clients too (let’s say, each client and each lawyer would get an additional $10,000 if the lawyer agreed to forego future representation)?
One might, as an initial matter, think that such an agreement would be wholly permissible. After all, settlements are favored; the plaintiff and defendant, generally, can settle a matter however they wish; and, under Rule 1.2(a) , the decision whether to settle rests with the client.
Yet, it turns out that such an agreement would be impermissible under the Model Rules. This type of agreement is unambiguously banned by Rule 5.6, which provides: “A lawyer shall not participate in offering or making . . . (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” According to ABA Formal Opinion 93 – 371 (1993) :
The rationale of Model Rule 5.6 is clear. First, permitting such agreements restricts the access of the public to lawyers who, by virtue of their background and experience, might be the very best available talent to represent these individuals. Second, the use of such agreements may provide clients with rewards that bear less relationship to the merits of their claims than they do to the desire of the defendant to “buy off” plaintiff’s counsel. Third, the offering of such restrictive agreements places the plaintiff’s lawyer in a situation where there is conflict between the interests of present clients and those of potential future clients. While the Model Rules generally require that the client’s interests be put first, forcing a lawyer to give up future representations may be asking too much, particularly in light of the strong countervailing policy favoring the public’s unfettered choice of counsel. 144
Note, too, that Rule 5.6(b) does not just bar lawyers from “making” agreements that restrict the lawyer’s right to practice. It is also inappropriate to offer such an agreement. Thus, in one highly publicized case, a law professor handling a tort claim was suspended for a number of infractions, including violating Rule 5.6(b), by accepting a settlement in which he agreed not to represent future claimants against the defendant. The defendant’s lawyer who proposed the buyout offer was also suspended for one year, on the basis of Rule 5.6(b), as well as Rule 8.4(a), which makes it “professional misconduct” for a lawyer to “violate or attempt to violate the Rules of Professional Conduct [or] knowingly assist or induce another to do so.” 145
5671.To what extent should the bar seek to regulate restrictions on attorneys’ practice? Are such rules primarily designed to protect counsel, to protect current clients, to protect hypothetical future clients, or to protect the public?
2.It is sometimes said that when the public interest in seeing justice done conflicts with the interests of lawyers or the interests of individual clients, the Model Rules consistently advance the interests of lawyers and individual clients. 146 To the extent one accepts this critique, does Rule 5.6(b) fit the script? Or is Rule 5.6(b) exceptional? Does Rule 5.6(b) safeguard the public interest, even at the expense of the interests of individual lawyers or clients?
3.According to Professor Marc Galanter:
Our intuition that buyout is bad points to a hard-to-articulate dimension of the distinctive “professional” character of law. Practicing a profession means taking on not only duties to specific clients, but sharing in a collective responsibility to the general public. Part of this responsibility is to serve as trustee of a body of skills and knowledge, to various classes, defined and as yet undefined, within that public. This knowledge can be used for private gain, but there are corresponding obligations to maintain its integrity, to have it grow and adapt to encompass new situations. 147
Do you agree?
4.Though Rule 5.6(b) is widely adopted, very clear, and backed by stiff penalties for noncompliance, there are hints that it is routinely disobeyed. 148 If a Rule is frequently ignored, should it remain on the books? What might be some benefits or drawbacks?
As in Problem 8, you represent the plaintiff in what you believe to be the first product liability suit involving a new form of breast implants. Your client is alleging that the implants leaked and caused a life-threatening illness. Ultimately, after litigating hard for two years and uncovering many “hot” documents that reveal the defendant-manufacturer’s liability, you tentatively agree to settle the controversy. The proffered offer from the defendant requires you to return to the 568 defendant all the documents you discovered, and it also restricts you and your client from speaking about the litigation.
a)In addition, suppose the proffered settlement offer also includes a provision specifying that you will not handle breast implant product liability suits in the future. How do you proceed?
b)Disregard (a). Consider instead that, shortly after the settlement agreement is inked, the defendant-manufacturer offers to retain you as an “expert consultant” to assist it in any future silicone-implant product liability suits. You will receive a generous annual retainer for nominal responsibilities. Of course, given Rule 1.7, which governs conflicts of interest, if you accept the retention, you will be conflicted out of representing breast implant plaintiffs in product liability suits against the manufacturer in the future. What considerations would affect your decision whether to accept the retention? What Rules, if any, have been violated? To the extent you can ethically become an “expert consultant,” does that change your opinion of Rule 5.6(b) or your answer to Questions 1 and 2 above? 149
References: Rules 1.2(a) , 1.4 , 5.6(b) .
These days, many suits are pursued in an aggregated fashion, rather than one-by-one. Consequently, particularly in the realm of mass torts, it is not unusual for a single lawyer or law firm to represent hundreds, or even thousands, of injured individuals simultaneously. 150
Litigating claims en masse confers certain benefits. It can arm individual plaintiffs with increased leverage in settlement negotiations. It can also provide plaintiffs’ lawyers helpful economies of scale: While it is not economically feasible for a plaintiffs’ lawyer working on a contingency fee to spend tens of millions of dollars prepping an individual case, that same lawyer can pour more resources into case development if she has 1,000 such cases. She will be able to retain more and more 569 accomplished expert witnesses, conduct depositions of additional fact witnesses, review extra documents in discovery, and master the minutiae of complicated fact patterns—which, in turn, will likely increase plaintiffs’ odds of success. Further, when a defendant’s very existence may be in jeopardy (as it sometimes is when potential liability is massive), joint representation can help to conserve the defendant’s dwindling assets.
But joint representation also has drawbacks. These risks are especially acute when the defendant seeks a global settlement to extinguish all (or nearly all) of a single plaintiffs’ lawyers’ claims in one fell swoop. This global settlement might be to some clients’ advantage, but it might not be in all clients’ best interest (thus raising a clear concurrent conflict). Worse, those clients most predictably shortchanged by global settlements are those with strong claims and serious injuries—and those who, as a consequence, have the most compelling and urgent need for adequate relief.
Compounding these conflicts, the plaintiffs’ lawyer—who may have invested years and millions of dollars pursuing the litigation and, paid via contingency fee, will only be compensated if there is a recovery—will have a strong, and potentially overriding, financial interest in forging a global settlement. Even if a global settlement is reached, the plaintiffs’ lawyer is sometimes put in the awkward and ethically dubious position of allocating the settlement proceeds among her various competing clients.
Currently, Rule 1.8(g) governs this situation. Directed at global or “aggregate” settlements, Rule 1.8(g) provides:
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients . . . unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
Rule 1.8(g) imposes a number of requirements on plaintiffs’ lawyers. First, it establishes that, if a plaintiffs’ lawyer receives an aggregate settlement offer, the lawyer must disclose all the settlement terms to all of her clients, including the “details of every other client’s participation in the aggregate settlement.” 151 Second, it provides that no plaintiffs can be compelled to accept the defendant’s settlement offer, even if a single plaintiff’s rejection of the offer stymies the entire settlement for all the 570 other consenting plaintiffs. Third, it prohibits ex ante agreements to waive the above requirements, even with all clients’ unanimous consent.
Rule 1.8(g) has been adopted in some form in every state. But, in recent years, its post-hoc disclosure and unanimous consent requirements have been challenged as out of step with the practical demands of contemporary mass litigation. Some say the disclosure requirements can invade plaintiffs’ privacy, and, more fundamentally, that the Rule complicates and potentially stymies settlements that are often in all parties’—and even society’s—best interests. 152
Citing these concerns, in 2010, the ALI proposed amending Rule 1.8(g) to permit binding advance consent. In essence, “claimants may, prior to the receipt of proposed settlement offer, enter into an agreement through shared counsel allowing each participating claimant to be bound by a substantial majority vote of all claimants concerning an aggregate settlement proposal (or . . . a separate substantial majority vote of each category of claimants).” 153
1.Would the ALI’s proposal be an improvement over current practices? Is the ALI’s proposal consistent with Rule 1.2(a), which provides that “[a] lawyer shall abide by a client’s decision whether to settle a matter”? 154 Should Rule 1.2(a) give way to practical demands?
2.Pursuant to Rule 1.7(b) , when a lawyer seeks to represent numerous clients simultaneously, the lawyer must (among other things) “reasonably believe[ ] that the lawyer will be able to provide competent and diligent representation to each affected client” and must also obtain the client’s “informed consent” to the concurrent conflict “confirmed in writing.” As noted above, informed consent is defined as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 1.0(e) . That begs the question: What information must a lawyer, poised to take on numerous clients all complaining of a particular injury from a given product disclose, up front, to each client regarding the aggregate nature of the representation? What risks must the lawyer convey to each client in order to comply with Rule 1.7(b)? Would prospective clients be better off finding a lawyer who is not representing hundreds or thousands of similarly-situated clients (assuming such a lawyer even exists)? What are the relevant tradeoffs between individualized and aggregate representation? 155
571Vioxx was a highly successful prescription painkiller, approved by the FDA in May 1999 and ultimately prescribed to some 20 million Americans. However, in the fall of 2004, Merck, the maker of Vioxx, pulled the drug from the market amidst revelations that Vioxx significantly increased users’ risk of heart attacks, strokes, and sudden death. Evidence ultimately came to light indicating that Merck was aware of Vioxx’s cardiovascular risks starting years earlier, but it opted to obscure, rather than disclose, Vioxx’s true risk profile.
On the heels of these revelations, some 47,000 people filed claims against Merck. As suits piled up, financial analysts predicted potential liability of tens of billions of dollars. As financial analyst James Cramer put it: “When the juries hear that people died because they took a drug meant to relieve shoulder pain, they will destroy Merck, sure as shinola.”
As the product liability litigation matured, it became clear that both sides faced substantial risks. Plaintiffs faced an uphill battle establishing specific causation, because many particularly elderly individuals who used Vioxx might have had heart attacks or strokes, even without taking the drug. These causation problems seemed to matter to juries; plaintiffs won only five of the first seventeen cases that went to trial. Also casting a shadow, in the midst of the Vioxx litigation, the Supreme Court granted certiorari on a closely-watched case ( Wyeth v. Levine ) that had the potential to doom plaintiffs’ claims, as many believed the Court might rule that federal regulations preempted state tort law. On the other hand, evidence of Merck’s concealment of Vioxx’s risks was strong, and the five plaintiffs who had prevailed at trial all were awarded large punitive damages. Further, the litigation was causing Merck to hemorrhage money on legal fees, to the tune of roughly $1 million per day.
With risks on both sides, thousands of lawsuits pending, and litigation costs mounting, the parties negotiated a settlement. The agreement they ultimately hammered out required Merck to pay $4.85 billion in damages. This dollar value was not extraordinary—but the form of the settlement was.
For starters, though the seventy-plus-page agreement was titled “SETTLEMENT AGREEMENT,” it was not actually an agreement between the injured plaintiffs and defendant Merck. It was, instead, an agreement between Merck and the plaintiffs’ lawyers with a large inventory of Vioxx claims. Further, under the agreement’s terms, plaintiffs’ attorneys representing multiple Vioxx-injured plaintiffs agreed to recommend the settlement to all of their clients. The Agreement, which became binding only if 85 percent of plaintiffs signed on, further provided: “The parties agree that a key objective of the 572 Program is that, with respect to any counsel with an Interest in the claims of any Enrolled Program Claimant, all other Eligible Claimants in which such counsel has an Interest shall be enrolled in the Program.” In the event a given client refused to participate, the signatory law firms promised, “to the extent permitted” by applicable strictures of legal ethics, “to disengage . . . from the representation” and “to forego any [i]nterest” in whatever recovery the client ultimately might obtain. Absent a signatory law firm’s commitment of its entire Vioxx client inventory to the deal, Merck would have the discretion to reject the firm’s enrollment such that none of the firm’s clients would be eligible to enroll.
Troubled by the above provisions, some plaintiffs’ counsel sought a declaratory judgment that these terms were unenforceable. In response, Merck and the negotiating plaintiffs’ lawyers added explanatory language to the agreement: “Each Enrolling Counsel is expected to exercise his or her independent judgment in the best interest of each client individually before determining whether to recommend enrollment in the Program.” This amendment, however, was put forth as a “clarification” rather than as a substantive change; the agreement’s controversial provisions were not removed.
To recap, the amended agreement contained the following five provisions:
(1)Merck had the right to walk away from the settlement unless at least 85 percent of the plaintiffs agreed to it.
(2)Plaintiffs’ counsel agreed to exercise independent professional judgment on behalf of each client.
(3)When submitting an enrollment form, plaintiffs’ counsel affirmed that she had recommended the settlement to 100 percent of her clients. If a lawyer did not commit her entire client inventory to the settlement, Merck could reject the lawyer’s enrollment such that none of the lawyer’s clients would be eligible to enroll.
(4)Plaintiffs’ counsel agreed to “disengage” from representing clients who rejected the recommendation to settle, to the extent permitted under Rules 1.16 and 5.6(b).
(5)If plaintiffs’ counsel withdrew from representing a particular client, she agreed to forgo any financial interests in that client’s ultimate recovery.
However unorthodox, this was a way to reach a global settlement and stem the tide of litigation. On July 17, 2008, Merck formally announced that it was satisfied that the agreement’s 85 percent trigger would be met, and it deposited an initial sum of $500 million into the settlement fund, clearing the way for the distribution of initial payments. In fact, a full 99.9 percent of claims were ultimately resolved under the settlement program, making Vioxx (by one measure) the most successful mass tort settlement in American history. The payments went smoothly, 573 and by 2010, most claims had been paid. 156 Nevertheless, some condemned the Vioxx settlement for running roughshod over various rules of professional ethics in its quest for closure.
Professors Howard Erichson and Benjamin Zipursky ask several pertinent questions about the Vioxx settlement. 157 How would you answer their questions?
a)Rule 1.2(a) states: “A lawyer shall abide by a client’s decision whether to settle a matter.” Does the Vioxx settlement violate this Rule? (For more on Rule 1.2(a) , see Chapter 5.)
b)Rule 2.1 requires lawyers to offer clients independent and candid advice. If the lawyer has signed a settlement agreement specifying the advice he or she must give, does that violate the Rule? What if the lawyer is convinced that the settlement agreement is in the best interest of all her clients?
c)Rule 1.7(a)(2) forbids lawyers from representing a client if the representation might be materially limited by responsibilities to a third person. In this settlement, the lawyer has obligations to Merck to counsel the client as specified in the settlement agreement. Is that a problem?
d)Does the requirement that the attorney withdraw if the client refuses to enter the agreement violate Rule 5.6(b) ? Does it matter that the settlement agreement contains language stating that its terms apply only to the extent consistent with Rule 5.6(b) and 1.16 ?
e)Does the settlement comply with Rule 1.16, which governs (and cabins) attorney withdrawal? (For more on Rule 1.16, see Chapter 5.)
5.Business Transactions Between Attorneys and Clients
Rule 1.8(a) targets another area where attorney-client conflicts are likely to arise: when the lawyer and client are poised to enter into a business relationship. Under Rule 1.8(a): “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless” four conditions are met. These are:
(1)the transaction and its terms are objectively “fair and reasonable to the client”;
574(2)the terms are “fully disclosed” to the client and conveyed “in a manner that can be reasonably understood”;
(3)“the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel”; and
(4)the client offers consent to the transaction, confirmed in writing.
The Restatement offers the following justification for imposing special restrictions on attorney-client transactions:
A lawyer’s legal skill and training, together with the relationship of trust that arises between client and lawyer, create the possibility of overreach[ ]. . . . Furthermore, a lawyer who engages in a business transaction with a client is in a position to arrange the form of the transaction or give legal advice to protect the lawyer’s interests rather than advancing the client’s interests. 158
Rule 1.8(a) does not apply to ordinary client-lawyer fee agreements; those are governed by Rule 1.5 . But Rule 1.8(a) does apply when a lawyer takes an interest in the client’s business as payment for legal services, and, according to many courts, it also applies when a lawyer seeks to change the attorney-client fee agreement in the midst of representation. See, e.g., In re Curry , 16 So. 3d 1139, 1154 (La. 2009) (finding that a lawyer who changed the terms of a contingency fee midway through a representation violated Rule 1.8(a) because the client did not have an opportunity to seek the advice of independent counsel regarding the transaction); In re Hefron , 771 N.E.2d 1157, 1162–63 (Ind. 2002) (concluding in a disciplinary proceeding that an attorney violated Rule 1.8(a), where the attorney renegotiated the lawyer-client representation agreement to provide for a contingency fee rather than an hourly fee after it became apparent that a substantial recovery was likely, and where the lawyer failed to furnish the client an opportunity to seek alternative counsel). Why do you suppose those two situations are subject to special scrutiny?
1.It is said that “there are no transactions which courts of equity will scrutinize with more jealousy than dealings between attorneys and their clients.” Rogers v. R.E. Lee Mining Co ., 9 F. 721, 725 (D. Colo. 1881) . 159 Given that is so, and given that these transactions raise such potential for overreach, should lawyer- client business transactions be banned altogether?
2.Lawyer-client business transactions gone wrong can become the subject of heated litigation. An aggrieved client may claim that, in entering into a 575 business relationship, the lawyer breached a duty of loyalty, fidelity, and reasonable care. In these suits, some courts hold that if the lawyer and client have entered into a business transaction and the client subsequently challenges the transaction’s substantive fairness, the standard burdens of proof are flipped. In order to prevail, the client does not have to show overreach. Rather, the lawyer bears the burden of “establish[ing] that the transaction was fair and conducted in good faith.” 160 Indeed, some courts go further, requiring the lawyer to prove the transaction’s substantive fairness by “clear and convincing evidence.” 161 Furthermore, contracts entered into in contravention of Rule 1.8(a) are often held to be void or voidable, at the client’s election. 162
3.As noted above, courts hold that, although Rule 1.8(a) does not govern traditional fee arrangements, it does apply when a lawyer takes an interest in the client’s business as payment for legal services. This wrinkle came to the fore during the boom in internet and other high-technology companies in the late 1990s, as many prominent law firms pioneered fee arrangements in which cash-strapped entrepreneurs compensated lawyers with shares or investments in their start-up companies. This practice has proven controversial, both because it threatens to compromise lawyers’ independent judgment, and because as companies prosper, lawyers can make fortunes, raising questions about whether their fees are excessive pursuant to Rule 1.5(a) . 163 (Rule 1.5(a) provides: “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” For more on attorneys’ fees, see Chapter 13.)
Evaluating these arrangements, ABA Formal Opinion 00–418 (2000) concluded that compensation in the form of client shares is not per se unreasonable, though attorneys seeking such compensation must comply with the substantive requirements and procedural niceties of Rule 1.8(a). The ABA Opinion also directed lawyers to advise clients that events might arise after the acquisition of stock ownership that could create conflicts between the lawyer’s personal financial interests and the duty to provide 576 independent judgment. Lawyers whose objectivity might reasonably be questioned would need to withdraw or obtain informed consent to continued representation.
4. New York City’s Committee on Professional Ethics goes a small step further than ABA Formal Opinion 00–418 (2000) . It admonishes: “A lawyer accepting payment in the form of client securities should seriously consider engaging an investment professional to advise as to the value of the securities as given.” 164 Should a lawyer who is considering taking an equity interest in her client be required to engage an investment professional to offer advice concerning the equity interest’s fair market value? What other considerations should guide attorneys, courts, and clients?
5.Could such problems be mitigated by pooling arrangements in which firms that accept fees in the form of equity hold the securities in a joint fund, in which all firm lawyers may invest? Such arrangements may reduce an individual lawyer’s direct interest in the value of any particular corporate holding. Would you advise your firm to establish such arrangements, or would you follow the policy of some Wall Street firms and bar direct investment in clients?
You are a lawyer in a firm that specializes in representing high-tech startups. A group of scientists and genetic engineers seeks your assistance in launching a biotechnology firm. They ask you to accept shares in the company in lieu of your standard fee. Their expectation is that once they make an initial public offering, the stock will become highly profitable and share prices will rise dramatically.
a)Is this arrangement appropriate under the Model Rules? Under what circumstances could this compensation scheme compromise your independent judgment?
b)Assume that you agree to the arrangement. How do you determine the fair market value of the shares in order to comply with Model Rule 1.8(a) and also Rule 1.5(a)’s requirement that fees be “reasonable”?
c)After the company is launched, the biotechnology partners invite you to leave your law firm and become general counsel. You accept the offer. Some years later, after you have become a member of the board of directors and a large shareholder, the company becomes the target of a hostile takeover. A lucrative tender offer is likely to make you rich by boosting the value of your shares; a successful takeover could also deprive you of your job. In either case, are you capable of rendering independent legal judgment to the company? What should you do?
d)Assume that, during the course of the takeover battle, the directors vote to set up “golden parachutes” for themselves and top brass. These lucrative severance packages will become available if management 577 changes hands. In one sense, such arrangements serve the corporation’s interest because they reduce financial incentives that might bias the judgment of its decision-makers. In another sense, these provisions look like crass self-dealing. How should you proceed? Can you draft a golden parachute for yourself? 165
References: Rules 1.5 , 1.7 , 1.16 , 1.8(a) .
A business conflict of a different sort arises when a lawyer agrees to represent a litigant in a sensational case in return for media rights to the story. In some instances, this is the only way that the client can afford the services of a highly qualified lawyer. Yet another specific conflicts rule, Rule 1.8(d), forbids the practice. It provides: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.” In justifying the restriction, Comment 9 to Rule 1.8 explains that the sale of such rights will create conflicts because “[m]easures suitable in the representation of the client may detract from the publication value of an account of the representation.” 166
1.Can even such a per se rule fully protect clients from lawyers whose judgments are made with an eye to their media value? What provisions, if any, protect clients from such abuse? Notice, Rule 1.8(d) does not necessarily keep a lawyer from acquiring the client’s media rights after the representation has concluded. Should it?
2.In a landmark decision, Maxwell v. Superior Court, 639 P.2d 248 (Cal. 1982), the California Supreme Court sidestepped the Rule 1.8(d) prohibition in the case of an indigent criminal defendant, Bobby Joe Maxwell, who was nicknamed the “Skid Row Stabber” and charged with ten counts of murder. Maxwell could not pay his lawyers. So his legal team, led by Los Angeles lawyer Pierpont M. Laidley, proposed a contract for the rights to Maxwell’s story in return for free representation. Anticipating an ethical challenge, the lawyers drew up a detailed nineteen-page contract that warned Maxwell of the myriad risks he was assuming by agreeing to the unconventional fee arrangement. These risks included that counsel’s economic motives might run counter to Maxwell’s best interest, that counsel might avoid mental defenses because, if successful, they might suggest Maxwell’s incapacity to make the contract, that counsel might want to sensationalize the trial, or that counsel may even want to sabotage the trial and see Maxwell sentenced 578to death, as such a sentence might make for a more dramatic end to their story. Undaunted, Maxwell signed the contract.167
Subsequently, though, the trial court got wind of the agreement. After a hearing and over Maxwell’s protests, the court removed Laidley and his team, citing the impropriety of the fee arrangement. Maxwell appealed the trial court’s decision, and the case ultimately made its way to the California Supreme Court.
In Maxwell , 639 P.2d at 256 , the California Supreme Court reinstated Laidley and his colleagues, holding that Maxwell had adequately waived any potential conflict and had a due process right to the counsel of his choice. Said the court: “When the possibility of significant conflict has been brought to the court’s attention and the danger of proceeding with chosen counsel has been disclosed generally to defendant, he may insist on retaining his attorneys if he waives the conflict knowingly and intelligently for purposes of the criminal trial.” Id . Citing Maxwell , in its recent overhaul of its Rules of Professional Conduct, California expressly declined to adopt Model Rule 1.8(d). 168
3.In a subsequent interview, Laidley insisted that his interest and Maxwell’s interest were consistently aligned: “It was our perception in Maxwell that we would make a hell of a lot more money if we won.” He reasoned: “The only lawyer who could write a book after losing a case is Marcia Clark. Who’s going to read a book by a losing defense attorney? It’s absurd.” Laidley also insisted that such media deals are no more corrupting than other fee arrangements. In his words: “If you’re paid hourly, do you stall? If you’re paid a flat fee, do you rush through it?” 169
Others see things differently. Professor David Luban has argued: “It might be that the accused’s biggest asset [to pay legal bills] is the media rights to his story.” “I don’t think that’s a good enough reason to eliminate the rule.” 170 Do you agree? Even if selling media rights might be in the individual client’s best interest, do the profession and the public also have an interest in mitigating the effects of lawyers’ exploitation of celebrity trials or cases with lurid facts? Is Laidey right that the potential conflicts raised by media contracts aren’t different in kind from the conflicts endemic to fee arrangements more generally?
7.Attorney-Client Sexual Relations
Lawyers’ sexual exploitation of clients constitutes what commentators have called “the profession’s dirty little secret.” 171 Apparently, lawyer-client relationships aren’t particularly rare: In a 579 nationwide survey, 32 percent of respondent-attorneys said they knew of at least one lawyer who had engaged in sexual relations with a client. 172 And some lawyers’ past exploitation of clients can read like a catalog of ignominy: In reported cases, attorneys have, among other things, threatened to withhold legal services unless clients acceded to the lawyers’ sexual advances, 173 offered to reduce their legal fees in exchange for sexual favors, 174 and sent female clients unsolicited “sexts.” 175 Further, even sexual relationships that are, on the surface, consensual often involve clients who are particularly vulnerable, including those who are victims of domestic violence, facing criminal charges, in the midst of marital dissolution, at risk of losing custody of their children, or are otherwise suffering from acute mental or emotional distress. 176
Few dispute that these sexual exploits are unethical. As one commentator notes: “It is hard not to be disgusted by lawyers who would turn their own clients into prostitutes.” 177 But even so, a specific ban on attorney-client sexual relations is of relatively recent vintage. In 1992, California became the first state to establish a specific rule against attorney-client sexual relationships, and ten years later, in 2002, the ABA followed suit, adopting Model Rule 1.8(j) . It provides: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Now, the majority of states have enacted Rule 1.8(j), or a similar provision. 178
Those justifying Rule 1.8(j) offer several explanations for its bright-line prohibition. Most obviously, the ban springs from an exploitation concern, and indeed, in the only Formal Opinion on the subject, the ABA identified several practice areas—including family law, criminal defense, probate, and immigration—where clients’ particular vulnerability might render it unlikely that the client could give adequate, genuine, informed consent to a sexual relationship. 179
Meanwhile, it is said that even if a sexual relationship is truly consensual, several problems might still arise. First, an intimate relationship may impair the lawyer’s independent judgment. Many 580 believe that “[e]motional detachment is essential to the lawyer’s ability to render competent legal service.” 180 It follows, then, that by threatening that “detachment,” the relationship might impair the lawyer’s judgment and competence. 181 A corporate lawyer might, for example, counsel the client against settlement in order to prolong the representation. Or a family lawyer, involved in a relationship with a divorcing spouse, might counsel against marital reconciliation. Second, the relationship might chill attorney-client communication. Here, an attorney engaged in an intimate relationship with a client may be hesitant to disclose to the client unpalatable facts or potentially undesirable outcomes, out of fear that such disclosures might affect the relationship. 182 Finally, a blurred line between the professional and personal may compromise the attorney-client privilege. This is because, as Chapter 6 explains, the privilege only protects statements made in the context of bona fide client-lawyer communication; if an attorney and client share secrets as part of a personal relationship, those disclosures won’t necessarily be protected. 183
Still, Rule 1.8(j) has its critics. Some charge that a per se ban demeans female clients by assuming their vulnerability and incompetence and also deprives female lawyers of opportunities for relationships that pose little threat of coercion or impaired judgment. 184 Others question why the Model Rules impose a per se ban on sexual but not business relationships with clients, particularly since “none of the principles of behavioral economics would suggest that lawyers are more inclined to put their interests ahead of their clients in the personal rather than the financial realm.” 185 Others maintain that Rule 1.8(j) is redundant and unnecessary because the rules, as written, already cover circumstances when the lawyer abuses the client’s trust. 186 Finally, still others charge that the Rule triggers “unwarranted complaints” by clients dissatisfied with a case’s outcome or by opposing parties seeking tactical advantages (though, to be fair, there is scant evidence of any such effect). 187
Taking a hard line against Rule 1.8(j) and citing many of the above concerns, Texas rejected a proposed rule akin to Rule 1.8(j) in 2010. Indeed, three-quarters of voting lawyers cast their ballots against the restrictions. 188 Taking a somewhat softer stance, others suggest that 581 instead of adopting a per se ban, states should adopt targeted prohibitions. For example, Florida provides that a lawyer shall not:
engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship including, but not limited to:
(1)requiring or demanding sexual relations with a client or a representative of a client incident to or as a condition of a legal representation;
(2)employing coercion, intimidation, or undue influence in entering into sexual relations with a client or a representative of a client; or
(3)continuing to represent a client if the lawyer’s sexual relation with the client or a representative of the client cause the lawyer to render incompetent representation.189
1.Questioning Rule 1.8(j) ’s bright-line approach, one commentator has written:
Sometimes, people are attracted to each other and sex is a basic human instinct. That sex may happen between consenting adults does not necessarily destroy relationships or breach fiduciary duties. Some will behave responsibly and others won’t. A bright line test may help prosecutors, but fails to take into consideration sexual relations that may occur without undue influence, without coercion, without drugs, without turmoil and without destroying the quality of an attorney-client relationship. 190
Do you agree?
2.How is Florida’s restriction like Rule 1.8(j)? How is it different?
3.Is Rule 1.8(j) or is Florida’s restriction preferable?
4.Generally, the attorney-client conflict rules compiled under Rule 1.8 ’s broad umbrella are imputed to all other lawyers in the firm. This means if partner A in a firm cannot have a business relationship with a client without adhering to Rule 1.8(a) , for example, partner B in the firm is similarly limited, even if partner B is not personally involved in the client’s representation. However, Rule 1.8(j) is expressly excluded from these imputation requirements. See Rule 1.8(k) . Is that exclusion sensible?
1Brian C. Shaw, A Survey of Legal Ethics in the Nineteenth Century 45 (1980) (unpublished paper) (quoting Joel Branham).
2The Papers of Daniel Webster 101–04 (Alfred S. Konefsky & Andrew J. King eds., 1982).
3The Model Rules’ conflict provisions were substantially amended in 1989 and again in 2002 based on recommendations by the Ethics 2000 Commission.
4Diana Huffman, Conflicts, Disqualifications Cause Persistent Headaches: Motions Filed for Tactical Reasons, Legal Times Wash., May 5, 1980, at 1.
5In Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985), the United States Supreme Court condemned the “tactical use of disqualification motions to harass opposing counsel,” id. at 436, and Justice Brennan’s concurring opinion described the strategy as “a deeply disturbing phenomenon in modern civil litigation,” id. at 441 (Brennan, J., concurring).
6Id. (civil cases); Flanagan v. United States, 465 U.S. 259 (1984) (criminal cases). In many states, courts have also attempted to reduce abuses by finding that a failure to file a timely motion to disqualify will estop parties from raising conflicts objection, or will increase their burden of proof.
7Milton C. Regan, Eat What You Kill: The Fall of a Wall Street Lawyer 37–39, 304–06 (2004); Mark A. Sargent, The Moral World of Corporate Lawyers, 19 Geo. J. Legal Ethics 289, 290 (2006).
8For discussion, see James J. Moliterno & George Harris, Global Issues in Legal Ethics 104–05 (2007); Janine Griffiths-Baker & Nancy J. Moore, Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?, 80 Fordham L. Rev. 2541 (2012). For the rule on vicarious disqualification, see Code of Conduct for Lawyers in the European Union (1988), excerpted in Moliterno & Harris, supra, at 109 n.1.
9Moliterno & Harris, supra note 8, at 105–08; see also Article 26 of Japan’s Code of Ethics for Practicing Attorneys; Rule 104 of the New Zealand Rules of Professional Conduct for Barristers and Solicitors. Few countries allow screening. Moliterno & Harris, supra note 8, at 110.
10See Restatement (Third) of the Law Governing Lawyers § 128, cmt. (c) (2000).
11Ishmael v. Millington, 50 Cal. Rptr. 592 (Cal. Ct. App. 1966) (permitting malpractice action against a lawyer representing both spouses for failing to inquire about husband’s assets).
12Some dispute this, and suggest that not all clients will feel betrayed by concurrent conflicts. For example, sophisticated corporate clients may not care if the law firm that represents them in a contract dispute with another company also represents that other company in unrelated corporate tax matters. For a critique of the rule preventing lawyers from being “directly adverse” to a client in a matter unrelated to one in which the client has engaged the lawyer, see Daniel J. Bussel, No Conflict, 25 Geo. J. Legal Ethics 207 (2012).
13Rule 1.7(b)(3) & cmt. 17.
14The “other law” provision comes to the fore because some states forbid certain kinds of concurrent representation. For example, in some states, substantive criminal law forbids lawyers from representing more than one defendant in a capital case, even with all the defendants’ consent. Id. cmt. 16.
15ABA Formal Op. 93–377 (1993); see also Restatement (Third) of the Law Governing Lawyers § 128 (2000); John S. Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev. 457 (1993).
16Charles J. Ogletree & Randy Hertz, The Ethical Dilemmas of Public Defenders in Impact Litigation, 14 N.Y.U. Rev. L. & Soc. Change 23, 27 (1986).
17Helen A. Anderson, Legal Doubletalk and the Concern with Positional Conflicts: A ‘Foolish Consistency’?, 11 Penn. St. L. Rev. 1, 7 (2006).
18William Glaberson, New York Loses a Top Legal Ally in Suit Over Guns, N.Y. Times, Apr. 17, 2004, at A1, A7.
19Carpenter prevailed in the first case, which served as the precedent for his loss in the second. No ethical problem was perceived at the time. Anderson, supra note 17, at 3.
20See Restatement (Third) of the Law Governing Lawyers § 128 (2000).
21See Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference of the ABA-AALS, 44 A.B.A. J. 1159, 1162 (1958).
22Anderson, supra note 17, at 15. For qualitative data, see Susan P. Shapiro, Tangled Loyalties: Conflict of Interest in Legal Practice 147–68 (2002); Norman W. Spaulding, The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono Publico, 50 Stan. L. Rev. 1395 (1998).
23Deborah L. Rhode, Pro Bono in Principle and in Practice 146 (2005).
24Abe Krash, Professional Responsibility to Clients and the Public Interest: Is There a Conflict?, 55 Chi. B. Rec. 31, 45 (1974); see also Esther F. Lardent, Positional Conflicts in the Pro Bono Context: Ethical Considerations and Market Forces, 67 Fordham L. Rev. 2279 (1999); Spaulding, supra note 22.
25Shapiro, supra note 22, at 153 (providing quote).
26Anthony E. Davis & Noah Fiedler, The New Battle Over Conflicts of Interest: Should Professional Regulators—or Clients—Decide What Is a Conflict?, 24 Prof. Lawyer 1, 4 (2017).
27Hope A. Comiskey & Jessica K. Davis, Corporate Outside Counsel Policies—Who Do You and Who Can You Represent? 24 Prof. Lawyer 28, 34 (2017).
28Davis & Fiedler, supra note 26, at 5.
29Letter from Milton C. Regan & James W. Jones to D.C. Bar Rules of Professional Conduct Review Committee, Re: Response to the Request for Comments on Client-Generated Engagement Letters and Outside Counsel Guidelines (June 28, 2019).
30Melanie Lasoff Levs, Wal-Mart’s Watershed Moment, Diversity & the Bar (May/June 2006), at https://www.mcca.com/db-magazine/archived-issues/may-june-2006/.
31Quoted in Settlement Agreement between Dep’t. of Justice and Skadden, Arps, Slate, Meagher & Flom LLP, Re: Ukraine Matter, Jan. 15, 2019, https://www.justice.gov/opa/press-release/file/1124381/download, Appendix, at 9, ¶ 14.
32Id. at Appendix 4–5, ¶ 9.
33Id. at Appendix 10, ¶ 16b (associate reports being “mindful that the clients view one of the aims of both [the Report] and [Project] 2 as improved PR on the issue of Ukraine’s conduct in relation to Yulia Tymoshenko and her trial”).
34Id. at Appendix 5, ¶ 9.
35Id. at Appendix, ¶ 7, at 4.
36Id. at Appendix, ¶ 8, at 4.
37Id. at Appendix 11, ¶ 17.
38Id. at Appendix 8, ¶ 4.
39Id. at 1.
40The Case of the Unwanted Will, 65 A.B.A. J. 484 (1979).
41Restatement (Third) of the Law Governing Lawyers § 60, cmt. i, illus. 2 (2000).
42Id. illus. 3.
43 Id.
44Am. Bar Ass’n Special Probate & Tr. Div. Study Comm. on Prof’l Responsibility: Comments and Recommendations on the Lawyers’ Duties in Representing Husband and Wife 8 (1993) [hereinafter Recommendations]; Malcolm M. Moore & Anne K. Hilker, Representing Both Spouses: The New Section Recommendations, 7 Probate & Prop., July–Aug. 1993, at 26. But see Am. Coll. of Tr. & Estate Counsel, Commentaries on the Model Rules of Professional Conduct (1993) (requiring lawyers to discuss the implications of joint or separate representation).
45Mark A. Karpel & Eric S. Strauss, Family Evaluation 259–60 (1983).
46Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253, 1294, 1304 (1994).
47The leading precedent is Cannon v. U.S. Acoustics Corp., 532 F.2d 1118 (7th Cir. 1976). For review of the relevant case law, see Musheno v. Gensemer, 897 F. Supp. 833 (M.D. Pa. 1995).
48Kenneth Mann, Defending White-Collar Crime: A Portrait of Attorneys at Work 173–74 (1985).
49Joseph D. Vaccaro & Marc R. Milano, Section 327(A): A Statute in Conflict: A Proposed Solution to Conflicts of Interest in Bankruptcy, 5 Am. Bankr. Inst. L. Rev. 237 (1997); Nancy B. Rapoport, Wrestling With the Problem of Potential Conflicts of Interest in Bankruptcy, 26 Viewpoint (Mar. 7, 1995).
50Ben Mezrich, The Accidental Billionaires: The Founding of Facebook 214–15 (2009).
51Anthony Davis et al., Proposals of Law Firm General Counsel for Future Regulation of Relationships Between Law Firms and Sophisticated Clients (2011).
52Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (describing Glasser and quoting Glasser, 315 U.S. at 75).
53Fed. R. Crim. P. 44(c).
54Does stonewalling threaten the integrity of proceedings? The leading case, In re Taylor, 567 F.2d 1183 (2d Cir. 1977), concludes that it does not. In Taylor, a motion to disqualify the defense lawyer was denied because, in the court’s view, it was a tactical trick by the prosecution to prevent an effective joint defense.
55John S. Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 (1978); see also Debra Lyn Bassett, Three’s a Crowd: A Proposal to Abolish Joint Representation, 32 Rutgers L. Rev. 387 (2001).
56Mann, supra note 48, at 170.
57 Id.
58402 N.E.2d 157, 162 (Ill. 1979).
59Id. (quoting American Bar Association Standards Relating to the Defense Function, Commentary, at 212–13 (1971)).
60See Charles W. Wolfram, Former-Client Conflicts, 9 Geo. J. Legal Ethics 677, 685–96 (1997).
3In addition, such an inquiry should be avoided whenever a presumption can be utilized due to the unsatisfactory nature of the potential evidence. This inquiry might for example consist of the questionable reliance on ex parte representations made in camera by the party seeking disqualification as to communicated confidences. Further, as the court in T.C. Theatre Corp. stated:
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule.
61William Freivogel, A Short History of Conflicts of Interest. The Future?, 20 Prof. Law. 3, 6 (2010).
62Charles W. Wolfram, The Vaporous and the Real in Former-Client Conflicts, 1 J. Inst. Study Legal Ethics 133, 135 (1996).
63Id. at 138.
64Mitchell v. Metro. Life Ins. Co., 2002 WL 441194, at *23 (S.D.N.Y. 2002).
65Freivogel, supra note 61, at 6.
66Id. Other courts would disagree. Id.
67Rule 1.9, cmt 3.
68See generally Lynda C. Shely, Law Firm Changes: The Ethical Obligations When Lawyers Switch Firms, 2006 Prof. Law. 69.
69Silver Chrysler Plymouth v. Chrysler Motors Corp., 370 F. Supp. 581, 584, 589 (E.D.N.Y. 1973).
70For general discussion, see Richard Painter, Advance Waivers of Conflicts, 13 Geo. J. Legal Ethics 289 (2000).
71N.Y. City Ethics Op. 2006–1 similarly allows blanket open-ended advanced waivers if clients are sophisticated. Similarly, Comment 22 to Rule 1.7 provides that a client’s ability to consent to future conflicts “is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.” The Comment suggests that a waiver’s validity may turn on (1) the client’s familiarity with the type of conflict; (2) whether the consent is open-ended or specific; (3) the client’s sophistication and experience; and (4) whether the client is independently represented by counsel in giving consent.
72Leonard Gross, Are Differences Among the Attorney Conflict of Interest Rules Consistent with Principles of Behavioral Economics?, 19 Geo. J. Legal Ethics 111, 128 (2006). Interestingly, a smaller number of attorneys, 44 percent, told clients that they could do a good job despite the conflict.
73Peter Jarvis et al., Clearly Enforceable Future Conflicts Waivers, ABA/BNA Lawyers’ Manual on Prof’l Conduct (Oct. 23, 2014).
74Daylian M. Cain et al., The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, 34 J. Legal Stud. 1, 2 (2005); Paul M. Healy & Krishna G. Palepu, Information Asymmetry: Corporate Disclosure and the Capital Markets: A Review of the Empirical Disclosure Literature, 31 J. Accounting & Econ. 405 (2001).
75Cain et al., supra note 74, at 16–22.
76Rule 1.7, cmt. 5; Restatement § 132, cmt. (j); D.C. Bar Ethics Op. 292 (1999).
77Restatement § 132, cmt. d (iii).
78Ronan Farrow, Harvey Weinstein’s Army of Spies, New Yorker, Nov. 6, 2017.
79Deborah L. Rhode, David Boies’s Egregious Involvement With Harvey Weinstein, N.Y. Times, Nov. 9, 2017. For more on Boies’s activity, see Matt Ford, David Boies’s Complicated Conflicts, Atlantic, Nov. 8, 2017.
80Rhode, supra note 79.
81Id.
82Ford, supra note 79.
83Miriam Rozen, NYT Fires Boies: “We Should Have Been Treated Better,” Am. Law., Nov. 7, 2017.
84New York City Bar, Formal Op. 2006–1.
85The Boies-Weinstein representation raises other ethics issues besides conflicts of interest. In our separate supplement of case studies, we include an extended discussion of this representation.
86Sheppard, Mullin, Richter & Hampton LLP v. J-M Mfg. Co., Inc., 425 P.3d 1 (Cal. 2018).
87Lincoln Caplan, Skadden: Power, Money, and the Rise of a Legal Empire 84 (1993).
88Id. at 81–82.
89Id. at 84.
90Id. at 83–85, 137.
91See Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law, 57 Fordham L. Rev. 149 (1988); see also discussion of fees in Chapter 13, Section E.
92See Restatement (Third) of the Law Governing Lawyers § 132, cmt. (c) (2000).
93For general discussion, see John Leubsdorf, Conflicts of Interest: Slicing the Hot Potato Doctrine, 48 San Diego L. Rev. 251 (2011).
94Conn. Rules of Prof’l Conduct, R. 1.10.
95Charles W. Wolfram, Modern Legal Ethics 402 (1986).
96Lance J. Rogers, Speakers, Audience Debate Screening as Tool to Forestall Imputed Conflicts, 22 ABA/BNA Lawyers’ Manual Prof’l Conduct 290, 291 (2006) (quoting Fox).
97Kirk v. First Am. Title Ins. Co., 108 Cal. Rptr. 3d 620 (Cal. Ct. App. 2010).
98See Rule 1.0, cmt. 9; LaSalle Nat’l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983).
99Rogers, supra note 96, at 290.
100Susan P. Shapiro, If It Ain’t Broke . . . An Empirical Perspective on Ethics 2000, Screening and the Conflict-of-Interest Rules, 2003 U. Ill. L. Rev. 1299; Susan P. Shapiro, Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life, 28 Law & Soc. Inquiry 87 (2003).
101Michael Downey, Elements of an Effective Screen, 27 ABA/BNA Lawyers’ Manual Prof’l Conduct 587 (2011).
102John D. Donahue, In-and-Outers: Up or Down?, in For the People: Can We Fix Public Service?, 60, 62 (John D. Donahue & Joseph S. Nye, Jr. eds., 2003). A representative survey by the Public Interest Research Group found that, of some 300 federal government employees who left office during one change in administration, about a third went directly into lobbying and another fifth joined law firms that were involved in lobbying. Catherine Crier, The Case Against Lawyers 169 (2002).
103Cong. Research Serv., Lobbyist and Interest Groups: Sources of Information (2006); Ronald G. Shaiko, Lobbying in Washington: A Contemporary Perspective, in The Interest Group Connection: Electioneering, Lobbying, and Policymaking in Washington 3, 7–8 (Paul S. Hernson et al. eds., 1998).
104Shaiko, supra note 103, at 9. For the expansion of lobbying activities, see Cong. Research Serv., Lobbying Reform: Background and Legislative Proposals (2006).
10518 U.S.C. § 207, 1905; see also Federal Bar Ass’n Op. 73–1, 32 Fed. B.J. 71 (1973).
106It is also endorsed by §§ 124(3) and 133 of the Restatement.
107The editors believe this is a typographic error for 1.11(a).
108In re Nat’l Prescription Opiate Litig., Case No. 1:17-MD-2804, 2019 WL 4686815 (N.D. Ohio 2019). Petitioners then sought a writ of mandamus to compel Judge Polster’s recusal and also moved to expedite a decision and stay district court proceedings, pending a decision on their petition. The Sixth Circuit denied the mandamus petitions and also denied the other motions as moot. In re Nat’l Prescription Opiate Litig., 2019 WL 7482137 (6th Cir. 2019).
109Jonathan Stempel, U.S. Judge Refuses to Disqualify Himself from Opioid Litigation, Reuters (Sept. 26, 2019), https://www.reuters.com/article/us-usa-opioids-litigation/u-s-judge-refuses-to-disqualify-himself-from-opioid-litigation-idUSKBN1WB1NH.
110Sturdivant v. Sturdivant, 241 S.W.3d 740, 742 (Ark. 2006).
111Id. at 747.
112See, e.g., State ex rel. Thompson v. Dueker, 346 S.W.3d 390 (Mo. Ct. App. 2011); In re Marriage of Perry, 293 P.3d 170 (Mont. 2013).
113D.C. Bar Ethics Op. 370 (2016).
30. . . Although the dissent would allow simultaneous negotiations, it would require that “whatever fee the parties agree to” be “found by the court to be a ‘reasonable’ one under the Fees Act.” The dissent’s proposal is imaginative, but not very practical. Of the 10,757 “other civil rights” cases filed in federal court last year—most of which were 42 U.S.C. § 1983 actions for which § 1988 authorizes an award of fees—only 111 sought class relief. Assuming that of the approximately 99% of these civil rights actions that are not class actions, a further 90% would settle rather than go to trial, the dissent’s proposal would require district courts to evaluate the reasonableness of fee agreements in several thousand civil rights cases annually while they make that determination in slightly over 100 civil rights class actions now. Moreover, if this novel procedure really is necessary to carry out the purposes of the Fees Act, presumably it should be applied to all cases arising under federal statutes that provide for fee shifting.
34We are cognizant of the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers’ expectations of statutory fees in civil rights cases. If this occurred, the pool of lawyers willing to represent plaintiffs in such cases might shrink, constricting the “effective access to the judicial process” for persons with civil rights grievances which the Fees Act was intended to provide. H.R.Rep. No. 94–1558, p. 1 (1976). That the “tyranny of small decisions” may operate in this fashion is not to say that there is any reason or documentation to support such a concern at the present time. Comment on this issue is therefore premature at this juncture. We believe, however, that as a practical matter the likelihood of this circumstance arising is remote.
114Charles Silver, A Restitutionary Theory of Attorneys’ Fees in Class Actions, 76 Cornell L. Rev. 656, 700 (1991).
115Pinto v. Spectrum Chems. & Lab. Prods., 985 A.2d 1239, 1250 (N.J. 2010).
116Compare Utah State Bar Ethics Advisory Comm., Op. 98–05 (1998) (forbidding attorneys from including such language in their retention agreements), with State Bar of Cal. Standing Comm. on Prof’l Resp. & Conduct, Formal Op. 1994–136 (1994) (holding that retainers may bar fee waivers, provided that the terms are fully disclosed and are fair and reasonable to the client).
117Coleman v. Fiore Bros., 552 A.2d 141, 147 (N.J. 1989) (concluding that public policy favored a rule “precluding public interest counsel from simultaneous negotiation of statutory claims for fees until the merits of the claim have been settled and by precluding defense counsel from attempting such simultaneous disposition”).
118Pinto, 985 A.2d at 1246.
119Id.
120Id. at 1247.
121See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Blum v. Stenson, 465 U.S. 886 (1984).
122Dague, 505 U.S. at 565.
123Rendine v. Pantzer, 648 A.2d 223, 253 (N.J. Super. Ct. App. Div. 1994), aff’’d as modified, 661 A.2d 1202 (N.J. 1995) (concluding that “a fee enhancement based on contingency considerations appears essential to the enforcement of the [Law Against Discrimination]”).
124Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General, 59 UCLA L. Rev. 1087 (2007).
125Emily Steel, Settlement Agreements Reveal How Bill O’Reilly Silenced His Accusers, N.Y. Times, Apr. 4, 2018, at B3. The New York Times has reported six publicly known settlements involving Bill O’Reilly, five for sexual harassment and one for verbal abuse. Payments total about $45 million. Id.
126See, e.g., Elizabeth A. Harris, Business as Usual on Secret Settlements, Even in Era of #MeToo, N.Y. Times, June 14, 2019, at A1; Ronan Farrow, Harvey Weinstein’s Secret Settlements, New Yorker, Nov. 21, 2017; Editorial, Secret Settlements Protect Sexual Predators, USA Today, Nov. 12, 2017; Alex Berenson, Eli Lilly Said to Play Down Risk of Top Pill, N.Y. Times, Dec. 17, 2006, at A1; Richard A Zitrin, Secrecy’s Dangerous Side Effects: When Legal Settlements Allow Companies to Hide Their Mistakes, What We Don’t Know Can Hurt Us, L.A. Times, Feb. 8, 2007, at A21.
127Christopher R. Drahozal & Laura J. Hines, Secret Settlement Restrictions and Unintended Consequences, 54 Kan. L. Rev. 102 (2006).
128Adam Liptak, A Case That Grew in Shadows, N.Y. Times, Mar. 24, 2002.
129Sacha Pfeiffer, Critical Eye Cast on Sex Abuse Lawyers: Confidentiality, Large Settlements are Questioned, Bos. Globe, June 3, 2002, at A1.
130Richard A. Zitrin, The Case Against Secret Settlements (Or, What You Don’t Know Can Hurt You), 2 J. Inst. Stud. Legal Ethics 115, 116 (1999); see also David Luban, Limiting Secret Settlements By Law, 2 J. Inst. Study Legal Ethics 125 (1999).
131Comm’n on the Evaluation of the Rules of Prof’l Conduct, ABA Ctr. for Prof’l Responsibility, Minutes, pt. V (Feb. 16–17, 2001).
132Letter from Stephen N. Zack, President, Am. Bar Ass’n, to Hon. Patrick J. Leahy & Hon. Charles Grassley, Re: Opposition to S. 623 (May 4, 2011).
133Kevin Livingston, Rough Road Ahead for Legislators and Legal Ethicists Who Want to Ban Secret Settlements, S.F. Recorder, May 8, 2001, at 1 (quoting Ethics 2000 Reporter, Nancy Moore, as stating “the commission felt it should not tell lawyers they aren’t allowed to assist clients with something the client is legally allowed to do. It tells [the client] they can’t get legal advice for a cause of action [they are legally entitled to take]”).
134See, e.g., Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 486 (1991); Eric Frazier, Judges Veto Sealed Deals, Nat’l Law J., Aug. 12, 2002, at A1; Kevin Livingston, Open Secrets, The Recorder, May 8, 2001, at 1.
135See, e.g., David A. Dana & Susan P. Koniak, Secret Settlements and Practice Restricts Aid Lawyer Cartels and Cause Other Harms, 2003 U. Ill. L. Rev. 1217, 1225 (2003); James E. Rooks, Jr., Settlements and Secrets: Is the Sunshine Chilly?, 55 S.C. L. Rev. 859, 867–68 (2004).
136Zitrin, supra note 130.
137See Pfeiffer, supra note 129, at A1.
138Davan Maharaj, Firestone Recall Puts Spotlight on Secret Liability Settlements, Milwaukee J. Sentinel, Sept. 10, 2000, at 3A.
139 Harris, supra note 126.
140Stacy Perman, #MeToo Law Restricts Use of Nondisclosure Agreements in Sexual Misconduct Cases, L.A. Times, Dec. 31, 2018.
141 Harris, supra note 126.
142This problem is based on the dilemma that reportedly faced the lawyer and client in the first product liability lawsuit involving silicone breast implants, against Dow Corning Corporation. Gina Kolata, Secrecy Orders in Lawsuits Prompt States’ Efforts to Restrict Their Use, N.Y. Times, Feb. 18, 1992, at D10. Subsequent litigation has generally failed to find liability. See Marcia Angell, Science on Trial, 99–110, 195–96 (1996).
143Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469, 520 (1994).
144ABA Formal Op. 93–371 (1993).
145In re Hager, 812 A.2d 904 (D.C. 2002); In re Zaruba, 832 A.2d 317 (N.J. 2003).
146See generally Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702 (1977) (leveling this critique at the Model Code).
147Marc Galanter, A Note on Lawyer Buyout (unpublished manuscript, 1990).
148See, e.g., ABA/BNA, Lawyer’s Manual on Professional Conduct § 51:1211 (Supp. 1996) (“It is pretty much taken for granted that some lawyers use restrictive covenants in settlement agreements despite the ethics’ rules prohibition.”); Paul D. Rheingold, Mass Tort Litigation § 21:17 (2006) (“[B]uyouts go on all the time and will continue, notwithstanding the various ABA opinions.”); Joanne Pitulla, Co-Opting the Competition, A.B.A. J., Aug. 1992, at 101, 101 (“[I]t appears to be fairly common in certain types of litigation to condition settlement offers on agreements by counsel not to file similar suits or bring claims against a particular defendant.”); Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 Wake Forest L. Rev. 733, 766 (1997) (stating that, in practice, “the rule frequently is ignored”).
149For discussion of a similar agreement, see Mindy L. Rattan, Bill O’Reilly Settlement Raises Ethics Issues for Lawyers, Bloomberg Law, Apr. 6, 2018 (describing a settlement agreement whereby the lawyer representing Andrea Mackris, who had accused Fox News Host Bill O’Reilly of sexual harassment, settled the Mackris-O’Reilly harassment claim and also agreed to “advise O’Reilly ‘regarding sexual harassment matters’ ” going forward); Dahlia Lithwick, Secret Handshake: The Depressing Truth at the Center of the O’Reilly and Trump Settlement Agreements, Slate, Apr. 6, 2018 (same).
150For a time, such suits were often initiated as class actions pursuant to Federal Rule of Civil Procedure 23(b)(3); as such, they were formally, rather than informally, aggregated. However, in the 1990s, the Supreme Court decided two cases that raised the bar to class certification and, in so doing, “largely ended the mass tort class action experiment.” David Marcus, The Short Life and Long Afterlife of the Mass Tort Class Action, 165 U. Pa. L. Rev. 1565, 1566 (2017). With class actions mostly off the table, today, mass tort cases are usually brought as aggregate actions, as lawyers or law firms informally amass large inventories of claims, often through a mix of advertising and referrals. Thereafter, such claims are—like the opioid litigation discussed above—typically swept into multi-district litigations (MDLs) pursuant to 28 U.S.C. § 1407. For a primer on MDLs, see Elizabeth Chamblee Burch, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation 1–34 (2019).
151ABA Formal Op. 06–438 (2006); see also Restatement (Third) of the Law Governing Lawyers § 128, cmt. (d) (2000) (“Before any settlement is accepted on behalf of multiple clients, their lawyer must inform each of them about all of the terms of the settlement, including the amounts that each of the other claimants will receive if the settlement is accepted.”).
152See generally Silver & Baker, supra note 148.
153Am. Law Inst., Principles of the Law of Aggregate Litigation § 3.17(b) (2010).
154For more on this dilemma, see generally Howard M. Erichson, Uncertainty and the Advantage of Collective Settlement, 60 DePaul L. Rev. 627 (2011); Silver & Baker, supra note 148.
155A comment to Rule 1.8 supplies a partial (though just a partial) answer. It provides: “Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients’ informed consent.” Rule 1.8, cmt. 13.
156This discussion draws on Benjamin Zipursky, The Vioxx Settlement Agreement and Some Problems in Legal Ethics (2008) (unpublished manuscript); Nora Freeman Engstrom, Legal Ethics: The Plaintiffs’ Lawyer 476–83 (2020) (unpublished manuscript); Snigdha Prakash & Vikki Valentine, Timeline: The Rise and Fall of Vioxx, NPR (Nov. 10, 2007), https://www.npr.org/2007/11/10/5470430/timeline-the-rise-and-fall-of-vioxx. For more on the Vioxx settlement, see Frank McClellan, The Vioxx Litigation: A Critical Look at Trial Tactics, the Tort System, and the Roles of Lawyers in Mass Tort Litigation, 57 DePaul L. Rev. 509 (2008); Howard M. Erichson & Benjamin C. Zipursky, Consent Versus Closure, 96 Cornell L. Rev. 265 (2011); Conn. Bar Ass’n, Informal Op. 08–01 (2008).
157Erichson & Zipursky, supra note 156, at 281–92.
158Restatement (Third) of the Law Governing Lawyers § 126, cmt. (b) (2000).
159Accord Smith v. Bitter, 319 N.W.2d 196, 198 (Iowa 1982) (emphasizing the “harsh and demanding responsibilities of an attorney” who enters into a business relationship with clients).
160Estate of Short, 785 P.2d 1167, 1170 (Wyo. 1990); see also Hunniecutt v. State Bar, 748 P.2d 1161, 1167 (Cal. 1988) (establishing that, in a disciplinary proceeding, “[w]hen an attorney-client transaction is involved, the attorney bears the burden of showing that the dealings between the parties were fair and reasonable and were fully known and understood by the client”).
161See, e.g., K.M.A. Assocs., Inc. v. Meros, 452 So. 2d 580, 581 (Fla. Dist. Ct. App. 1984); see also Charles W. Wolfram, Modern Legal Ethics § 8.11.3, at 481 (1986); Nora Freeman Engstrom, Lawyer Lending: Costs and Consequences, 63 DePaul L. Rev. 377, 436–37 (2014).
162Succession of Cloud, 530 So. 2d 1146, 1150 (La. 1988); Evans & Luptak, PLC v. Lizza, 650 N.W.2d 364, 370 (Mich. Ct. App. 2002); Law Offices of Peter H. Priest, PLLC v. Coch, 780 S.E.2d 163, 174 (N.C. Ct. App. 2015); cf. Calvert v. Mayberry, 440 P.3d 424, 432 (Colo. 2019) (holding that a “contract entered into in violation of Rule 1.8(a) is presumptively void” and that the lawyer will bear the burden of showing “the contract does not offend the public policy considerations underlying Rule 1.8(a)”).
163See Passante v. McWilliam, 62 Cal. Rptr. 2d 298 (Cal. Ct. App. 1997) (invalidating a fee contract where lawyers’ 3 percent share in company stock came to be worth $33 million because the lawyer failed to comply with informed consent rules); see also Debra Baker, Who Wants to Be a Millionaire?, A.B.A. J., Feb. 2000, at 36; John S. Dzienkowski & Robert J. Peroni, The Decline in Lawyer Independence: Lawyer Equity Investments in Clients, 81 Tex. L. Rev. 405 (2002); Brian J. Redding, Investing in or Doing Business with Clients: Some Thoughts on Lawyer Liability and Legal Ethics Issues, Prof. Law. 113 (2000).
164N.Y. City Comm. on Prof’l Ethics Formal Op. 2000–3.
165Thomas D. Terry, ALI-Am. Bar Ass’n Continuing Legal Educ., Executive Compensation: Strategy, Design, and Implementation: Golden Parachute Payments, June 8–9, 2000, at 117–118, 136–138.
166For more on the media rights prohibition, see Restatement (Third) of the Law Governing Lawyers § 48 (2000).
167The backstory is reported in John Gibeaut, Defend and Tell Lawyers Who Cash in on Media Deals for Their Clients’ Stories May Wish They’d Kept Their Mouths Shut, A.B.A. J., Dec. 1996, at 64, 66.
168See State Bar of Cal., Rule 1.8.1, Executive Summary, at 2, http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_1.8.1-Exec_Summary-Redline.pdf.
169Gibeaut, supra note 167.
170Id.
171William K. Shirey, Note, Dealing With the Profession’s Dirty Little Secret: A Proposal for Regulating Attorney-Client Sexual Relations, 13 Geo. J. Legal Ethics 131 (1999).
172Dan S. Murrell et al., Loose Canons: A National Survey of Attorney-Client Sexual Involvement: Are There Ethical Concerns? 23 Memphis St. U. L. Rev. 483, 489 (1993). An important caveat is that this survey was conducted prior to the promulgation of Rule 1.8(j).
173In one particularly stomach-turning example, an attorney “made threats to the client that if she did not accede to his sexual demands, he would deliberately sabotage her case so that she would lose custody of her children.” Attorney Grievance Comm’n of Md. v. Culver, 849 A.2d 423, 438 (Md. 2004).
174People v. Crossman, 850 P.2d 708, 708 (Colo. 1993).
175Disciplinary Counsel v. Detweiler, 989 N.E.2d 41, 43 (Ohio 2013).
176Malinda L. Seymore, Attorney-Client Sex: A Feminist Critique of the Absence of Regulation, 15 Yale J.L. & Feminism 175, 176 (2003).
177Christian F. Southwick, Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 S. Tex. L. Rev. 307, 316 (2002).
178See Am. Bar Ass’n, Summary of Adoption (last updated March 2020), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_1_8.pdf.
179ABA Formal Op. 92–364 (1992).
180Seymore, supra note 176, at 180 (quotation marks omitted).
181Rule 1.8(j), cmt. 17.
182Seymore, supra note 176, at 180.
183Rule 1.8(j), cmt. 17; Seymore, supra note 176, at 180–81.
184See Southwick, supra note 177, at 344–51.
185Gross, supra note 72, at 134.
186Attorney Grievance Comm’n of Md. v. Culver, 849 A.2d 423, 439–41 (Md. 2004) (discussing this argument and highlighting, in particular, Rules 1.7 and 8.4).
187See Hot Topics In Texas (Oct. 4, 2010), http://paralegalhell.com/2010/10/04/hot-topic-in-texas/ (quoting Houston attorney Rich Robins).
188Debra Weiss, Texas Lawyers Reject Ban on Sex with Clients, A.B.A. J., Feb. 22, 2011.
189Fla. Rules of Prof’l Conduct, R. 4–8.4(i) (2006).
190Carole J. Buckner & Robert K. Sall, Ethically Speaking: Point/Counterpoint: Sex with Clients: Prohibition or Permission?, Orange County Law., Feb. 2008, at 38, 43.
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Lawyers’ opportunities for ethical influence are generally greatest in their counseling and advising role. In this role, lawyers can shape the client’s understanding of what the law requires and how to fulfill its purposes. How effectively lawyers exercise this influence depends on a range of situational factors, including who the client is, the nature of the client’s problem, and the lawyers relationship with, and independence from, the client. This chapter explores the lawyer’s counseling role in four representative contexts: criminal, tax, family, and corporate practice.
Each of these areas raises distinctive challenges. In the criminal defense context, we focus on how lawyer advice may influence the choices of clients already in the criminal justice system, where the stakes are high and clients are particularly vulnerable. In the section on tax practice, we explore the distinctive ethical pressures that arise because the temptations for clients to cut corners are especially great, given that the risk of significant penalties is generally small and the public’s sense of moral responsibility to government tax collectors is generally limited.
Family practice poses distinct difficulties because the issues involved often carry considerable emotional as well as ethical freight. Parties have more personally at stake and have greater difficulties making rational decisions than in most other contexts. Moreover, the interests of vulnerable third parties—typically children—may be directly implicated but not formally represented. Furthermore, as we saw in Chapter 6, family counseling can raise complex issues of identifying the client and maintaining confidentiality.
We conclude the chapter with a consideration of counseling in complex corporate contexts. These contexts require lawyers to consider the often competing interests of various stakeholders: management, shareholders, employees, customers, and the public. The problem is complicated because managers generally have disproportionate power and strong views of what they seek to accomplish—and many want lawyers to simply authorize their preconceived plans.
To begin, it is important to mark a key distinction between the lawyer’s role in adversary proceedings versus counseling contexts. Counseling requires that the lawyer step back from client partisanship to offer independent advice based on the lawyer’s best professional judgment. An important question that arises is how strongly to advocate a particular course of action in light of that judgment. When might it be 584the lawyer’s job to persuade the client to follow that judgment, as opposed to simply laying out options? How should the lawyer weigh values other than the client’s, such as the public’s or other inadequately represented stakeholders’ in deciding what is the “right” thing to do? Where is the line between counseling a client who appears likely to engage in crime or fraud and knowing complicity in such unlawful activity?
Preet Bharara, the celebrated former U.S. Attorney for the Southern District of New York, reports that law students have frequently asked him some variation of that last question.
“Mr. Bharara, you’ve talked about making sure you don’t cross the line and that it’s dangerous to wander too close to the line. So, exactly how far from the line do you recommend people stay?” It is asked as if it were a geometry problem. I say, “Oh, about three and a half feet should do the trick.” I am always a bit taken a bit aback at these attempts to quantify ethics. I answer such questions by explaining that I disagree with the premise of the question; its orientation is unfortunate and off base; that if you are single-mindedly focused on walking the line, you are bound to end up afoul of regulators and, God forbid, criminal prosecutors. Even more dangerous perhaps, you are sending a message to every other person at the firm that line walking is a good idea. That can work for a while, but not forever. A culture of minimalism is lethal.1
Consider that response, along with the other questions that preceded it, in connection with the following overview of counseling approaches. Keep these approaches in mind as you read the context-specific materials that follow.
Lon L. Fuller and John D. Randall, “Professional Responsibility: Report of the Joint Conference”
44 ABA Journal 1159, 1161 (1958).
Vital as is the lawyer’s role in adjudication, it should not be thought that it is only as an advocate pleading in open court that he contributes to the administration of the law. The most effective realization of the law’s aims often takes place in the attorney’s office, where litigation is forestalled by anticipating its outcome, where the lawyer’s quiet counsel takes place of public force. Contrary to popular belief, the compliance with the law thus brought about is not generally lip-serving and narrow, for by reminding him of its long-run costs the lawyer often deters his client from a course of conduct technically permissible under existing law, though inconsistent with its underlying spirit and purpose.
585Although the lawyer serves the administration of justice indispensably both as advocate and as office counselor, the demands imposed on him by these two roles must be sharply distinguished. The man who has been called into court to answer for his own actions is entitled to a fair hearing. Partisan advocacy plays its essential part in such a hearing, and the lawyer pleading his client’s case may properly present it in the most favorable light. A similar resolution of doubts in one direction becomes inappropriate when the lawyer acts as counselor. The reasons that justify and even require partisan advocacy in the trial of a cause do not grant any license to the lawyer to participate as legal adviser in a line of conduct that is immoral, unfair, or of doubtful legality. In saving himself from this unworthy involvement, the lawyer cannot be guided solely by an unreflective inner sense of good faith; he must be at pains to preserve a sufficient detachment from his client’s interests so that he remains capable of a sound and objective appraisal of the propriety of what his client proposes to do.
———
When it comes to client counseling, one rule is particularly relevant, Rule 2.1. Rule 2.1 requires lawyers in an advisory role to “exercise independent professional judgment and render candid advice.” The Rule continues: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Although there is very little case law interpreting this rule, Comment 1 explains the meaning of the twin requirements of independence and candor:
[1]A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
The rule also gives lawyers substantial leeway to base their advice on non-legal factors. Here, Comment 2 explains:
[2]Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
586These standards raise important questions about how lawyers should bring moral and ethical standards into their counseling role. Most contemporary approaches to ethics in counseling have taken three basic forms: client-centered, collaborative, and contextual.2 Although the boundaries among these approaches often blur, they do help identify different understandings of lawyers’ moral responsibilities in advising clients.
A.A Client-Centered Approach to Counseling
What distinguishes client-centered counseling, as the term suggests, is the priority that it places on client autonomy.3 Concretely, it means that the lawyer-counselor explains the client’s options, with their plusses and minuses, but leaves the final choice to the client—even if it isn’t a choice the lawyer thinks is wise. Underlying this approach is a belief that clients have the right and capacity to determine their own objectives. In describing counseling relationships, most client-centered commentary assumes that individuals seek legal assistance to pursue interests that are autonomously determined and that lawyers’ basic responsibility is to provide “neutral,” “nonjudgmental” assistance.4 As proponents note, the lawyer-client relationship is one of agency, which presupposes that attorneys will defer to the party who has retained them, and who will have to live with the results of the representation. This emphasis on autonomy has a distinguished philosophical ancestry: Immanuel Kant argued that individual autonomy is the supreme value, the only thing that is good in itself, because the exercise of free will is what distinguishes rational beings from the rest of nature.5 Many philosophers follow Kant in the special value they place on autonomy.6
Yet, critics of this client-centered approach raise various concerns. First, as a descriptive matter, critics charge that the client-centered approach does not accurately reflect the role that ethical values other than concern for client autonomy actually play in counseling relationships. Elihu Root is credited with saying that “about half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”7 Further, critics point out that, even 587when lawyers strive to be neutral, the manner in which they present information inevitably shapes clients’ analysis.
Second, as a normative matter, critics suggest that client-centeredness does not capture the role that values other than client autonomy should play, in order to serve both client and societal interests.
As an initial matter, some take issue with what is meant by “autonomy.” Although many philosophers follow Kant in regarding autonomy as a supreme value, Kant meant by “autonomy” something quite different than simply doing whatever one wishes. Kantian autonomy means the power to act on the basis of duty—in other words, the ability to think and act for moral reasons rather than simply following inclinations. Other moral philosophers argue that individual autonomy is not valuable in itself. Rather, autonomy derives its importance from the other values it fosters, such as personal creativity, initiative, and responsibility.8 If a particular client objective does not, in fact, promote those values, or does so only at much greater cost to third parties, then deference to that objective lacks ethical justification.9 Although lawyers generally have less expertise in assessing clients’ preferences than clients themselves, lawyers also may have greater capacity to make a disinterested evaluation of third-party concerns.
Thus, from a moral standpoint, some argue that placing absolute priority on client autonomy is difficult to justify, particularly when the client is an organization rather than an individual. An artificial entity like a corporation or a school district has no personality and no autonomy (except as a figure of speech). A corporation’s “right” to maximize profits through unsafe or misleading but imperfectly regulated methods can hardly take ethical precedence over individuals’ rights to be free from unreasonable risks. And, in the real world, such client-centered representation has led to lawyers’ complicity in some of the most socially costly enterprises in recent memory: the distribution of asbestos and Dalkon shields; the suppression of health information about cigarettes; and the financially irresponsible ventures of lending institutions and corporations.10
As officers of the court and as gatekeepers in regulatory processes, lawyers have obligations that transcend those owed to any particular client.11 Honesty, trust, and fairness are collective goods; neither legal 588nor market systems can function effectively if lawyers lack a basic sense of social responsibility for the consequences of their professional acts.
A related difficulty with client-centered approaches is that they reinforce a restrictive role that often ill serves even client interests. The problems are greatest when a client’s judgment is impaired. As Chapter 5, Section D notes, the impairment may spring from multiple causes: youth, mental health disabilities, peer pressures, economic constraints, or psychological traumas such as divorce. As psychologists note:
[H]owever much we want to avoid manipulating others, however much we want to help or serve others by respecting their knowledge about what’s best for themselves, it’s never as simple as just letting them choose. It’s the human condition to have hazy or conflicting goals, or to be in the grip of some domineering passion, or to be unclear about the consequences of our actions.12
Under some circumstances, individuals may be poorly situated to take a long-term view of their interests or live up to their own moral values.
Less obviously, a variety of cognitive biases often prevents even seemingly rational business clients from accurately assessing facts that are economically inconvenient to acknowledge. Situational influences and psychological predispositions often converge to lead managers of organizations to overlook or rationalize unsafe and fraudulent activity.13 For example, short-term profit incentives tempt decision-makers to discount non-quantifiable considerations such as public reaction and the risks of detection. Once managers have committed to particular projects, they are inclined to construe events in ways that confirm prior beliefs, and downplay risks and countervailing evidence.14 Such “cognitive conservatism” and “overconfidence effects” may blind decision makers to evidence of deception or adverse social consequences.15 Group decisionmaking processes can compound the problem, as a diffusion of 589responsibility and fears of alienating colleagues (which are often justifiable) may work to further suppress unwelcome information.16
A similar problem arises when clients are entities that can only speak through agents with competing concerns. Managers’ desires to maximize their own income, power, or status within an organization may encourage them to make decisions that are not in the broader interest of other stakeholders. Since lawyers’ ethical responsibilities run to the entity, not to any particular constituent, lawyers’ counseling responsibilities need to take account of such conflicting concerns.17 Unfortunately, some client-centered commentary ignores these responsibilities, and assumes a kind of individual counseling relationship that is out of touch with organizational complexities. William Simon refers to this as the “Managerialist Fallacy”: Lawyers become complicit in corporate misconduct when they fail “to observe to the distinction between the organization’s interests and those of its senior managers.”18 Nor are these issues limited to misconduct—managers’ understandable self-interests reinforced by cognitive biases may cause them to make bad business decisions that harm the company, while the client-centered counsel keeps silent against his or her better judgment.
B.A Collaborative Approach to Counseling
The second main approach to counseling, which stresses collaboration between lawyers and clients, offers many of the same strengths as client-centered approaches while at least partly compensating for their major limitations. As the term suggests, collaborative counseling envisions lawyers and clients as co-venturers in problem solving, jointly responsible for its ethical implications. In general, the client’s preferred course of action prevails unless the attorney finds it self-destructive or “morally wrong.”19 As such, collaborative frameworks recognize that one of lawyers’ most valuable contributions is to engage and enlarge their clients’ moral vision, and to encourage decisions that express parties’ highest principles.20 By the same token, clients can enlarge lawyers’ moral vision; the collaborative approach to counseling favors dialogue that is a genuine two-way street. A promising application of this approach is reflected in the branch of 590family law practice that has claimed the same term.21 Under this approach, parties commit to collaborate with each other as well as with their lawyers in seeking fair, out-of-court agreements based on full disclosure. If the parties fail to reach such a settlement, the lawyers may not represent them in further proceedings, a condition designed to give all participants a substantial stake in mutually beneficial problem solving.
Of course, this approach has its own limitations. If lawyers must withdraw when unable to achieve a negotiated resolution, the costs of reeducating new counsel may be sufficient to coerce some participants into accepting undesirable agreements. Individuals who are most in need of ethical advice are probably least likely to agree to collaborative approaches. Moreover, under competitive pressures, the risk is that even collaborative lawyers will too closely identify with clients’ self-perceived interests. Many of the lawyers involved in the 2001 Enron scandal (discussed below and in more detail in Chapter 6) found their client’s conduct not so unambiguously illegal or immoral that they were unable to rationalize assistance, in what turned out to be devastating securities frauds that destroyed the company, ruined employees, and sent managers to prison. Vinson & Elkins, the primary law firm representing Enron, managed to find its highly misleading accounting strategies “creative and aggressive,” not deceptive or fraudulent.22 It is scarcely coincidental that this admiration involved a client that had accounted for a substantial proportion of the firm’s annual revenue and had employed some twenty of the firm’s former lawyers. In such circumstances, collaborative approaches that cast lawyers as co-venturers with their clients risk understating the need for independent judgment and the economic pressures that get in its way.
C.A Contextual Approach to Counseling
A final approach to counseling is more contextual and acknowledges a greater responsibility for the consequences of professional advice. As the label “contextual” indicates, under this approach, lawyers must decide how client-centered their assistance should be under the particular circumstances of their representation. Relevant factors include the significance of the ethical concerns at issue and the lawyer’s information, responsibility, and capacity to affect outcomes. Unlike 591either the “client-centered” model, which makes the client’s autonomous objectives preeminent, or the “collaborative” model, which invites the client, in consultation with the attorney, to “draw on his own moral resources” in resolving issues, contextual approaches acknowledge a significant independent role for the lawyers’ own ethical judgments.23 What this approach entails will vary depending on the context. A morally justifiable response need not involve lawyers imposing their values on clients. Rather, the lawyer’s willingness to take a stance may simply encourage clients to reconsider their position, or to accept the financial and psychological consequences of finding alternative counsel.
Like the other approaches, contextual counseling has its drawbacks. Most obviously, clients may resent overly-intrusive counseling by their lawyers, particularly if the clients have asked what they consider to be a purely legal question. Even though Rule 2.1 gives substantial leeway for lawyers to engage in moral advice, that role may be an unfamiliar one for which lawyers’ training does not necessarily equip them. In the problems that follow later in this chapter, consider the implications of each of the three models, in order to determine which seems most appropriate.
As we saw in our discussion of lawyer-client decisionmaking in Chapter 5, lawyers play an important role in counseling clients to comply with law. Rule 1.2(d) mandates that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,” though a lawyer “may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” We explore the line between appropriate discussion of legal consequences and inappropriate assistance in criminal or fraudulent action below. Here, our focus is on the role of counseling after a client has been charged with a crime, especially in the fraught decision of whether to accept a plea bargain. How should a lawyer advise a criminal defendant facing a potentially life-altering punishment?
William Simon recounts a case that he encountered as an inexperienced attorney. His client, Mrs. Jones, was a sixty-five-year-old black woman charged with leaving the scene of an accident. He obtained strong evidence that the charge was unfounded; remarks made to her by police officers also suggested that her arrest was racially motivated. Given the strength of that evidence, Simon believed his client would prevail at trial. Concerned about his own inexperience, however, he enlisted the aid of a friend, an experienced criminal defense lawyer. That 592lawyer promptly negotiated a plea bargain that would result in six months’ probation. Simon, however, was unhappy that if Mrs. Jones accepted the plea, she would lose her opportunity for vindication as well as her chance to expose gross police misconduct. Still, he presented the plea offer to Mrs. Jones and her minister (who had accompanied her to the courthouse to serve as a character witness):
I insisted that, because the decision was hers, I couldn’t tell her what to do. I then spelled out the pros and cons. . . . However, I mentioned the cons last, and the final thing I said was, “If you took their offer, there probably wouldn’t be any bad practical consequences, but it wouldn’t be total justice.” Up to that point, Mrs. Jones and her minister seemed anxiously ambivalent, but that last phrase seemed to have a dramatic effect on them. In unison, they said, “We want justice.”
I went back to my friend and said, “No deal. She wants justice.” My friend stared in disbelief and then said, “Let me talk to her.”
He then proceeded to give her his advice. He didn’t tell her what he thought she should do, and he went over the same considerations I did. The main differences in his presentation were that he discussed the disadvantages of trial last, while I had gone over them first; he described the remote possibility of jail in slightly more detail than I had; and he didn’t conclude by saying, “It wouldn’t be total justice.” At the end of his presentation, Mrs. Jones and her minister decided to accept the plea bargain. As I said nothing further, that’s what they did.24
In commenting on the case, Simon noted:
My guess is that most people will have some doubts about whether Mrs. Jones’s ultimate decision was autonomous. Before we explore these doubts, however, we should consider a prior set of circumstances that seems to represent a paradox for the autonomy view.
Mrs. Jones did not want to be autonomous in the way that the autonomy view contemplates. She asked me to make the decision for her. She would have been immensely relieved if I had told her without explanation what to do, and she would have done it.
Now most people recognize that a commitment to individual autonomy requires the condemnation of some individual choices that, however seemingly autonomous in themselves, would preclude capacity for further autonomous choice. Choosing to sell yourself into slavery is the classic 593example. So long as these choices seem crazy or highly unusual, the contradiction they pose for the commitment to autonomy is not that serious.
However, I don’t think that Mrs. Jones’s desire for an “escape from freedom” was crazy or highly unusual. Decisionmaking of this kind involves anxiety. Moreover, some people may reasonably believe that they are not very good at it. In such circumstances, the opportunity to put your fate in the hands of an apparently benevolent expert may seem attractive. . . .
Proponents of the autonomy view are likely to respond that the problem illustrated by Mrs. Jones’s case is not the implausibility of the autonomy ideal, but the failure to implement it competently on the part of her lawyers. They would suggest that the discussion was too hurried and pressured and the advice was less informative and neutral than it should have been. Although such criticisms have substance, they tend to underestimate some intractable problems. Time is scarce in nearly all practice situations, and the difficulties of framing unbiased advice are often overwhelming.
[In Mrs. Jones’s case, my] friend and I made clear to her that there was a theoretical possibility of a jail term if she were convicted, even though we both thought this probability tiny, and this knowledge visibly evoked anxiety and fear in Mrs. Jones. . . .
Most practicing lawyers would probably approve our conduct. Such judgments are based on assumptions that lawyers necessarily rely on about what a client’s goals are likely to be. Most lawyers would assume that even a small probability of jail would be important to most clients. . . . The compatibility of such assumptions with the autonomy view depends on the extent to which the assumption accurately reflects client ends. My own impression is that they are often too crude to serve as reliable guides. For example, in Mrs. Jones’s case, I think the conventional assumptions about the jail penalty . . . were wrong.
Going to jail would have been a disastrous outcome for Mrs. Jones. However, it was also a very unlikely outcome. As a purely cognitive matter, most people have difficulty rationally (that is, consistently) making decisions about risk. When the decision involves an outcome that evokes strong emotions and vivid images, the difficulty is compounded. . . .
In Mrs. Jones’s case, I think my friend and I should have either omitted mention of jail entirely or characterized it [as a 594negligible risk]. . . . I think she was bound to be disabled by any description of jail as a real, even if small, possibility.25
1.Do you agree with William Simon? Does it follow from his view that genuine client autonomy is impossible, at least in cases with a strong emotional component? Does client-centered counseling assume that client autonomy is always a realistic possibility?
2.In commenting on this example, Barry Schwartz and Kenneth Sharpe disagree with Simon’s approach and his subsequent suggestion of an alternative. They write:
To offer wise counsel, Simon needed to help Mrs. Jones perceive her situation and imagine alternatives. To do that he needed the know-how to listen and the skill to ask the kinds of questions that would help her reflect on her situation. He needed the empathy to understand what she was thinking and feeling. Developing that empathy required that Simon get to know Mrs. Jones. This kind of knowledge doesn’t come in the five minutes before a hearing begins. Simon did not have this wisdom to counsel, and neither did his friend. So they went through the motions of letting Mrs. Jones choose for herself . . . .
[Some might query,] [w]ouldn’t it be better if [her lawyers] presented the facts to her in a neutral way? That would maximize her autonomy and let her truly decide what best served her interests. But as we’ve said, there is no neutral. No matter what they said, their tone of voice, their body language, the order in which they but the facts and how they emphasized would have framed the issue for her. What Simon and his colleague could have done if they were wiser counselors was to enable Mrs. Jones to frame the situation better by helping her reflect more calmly about her interests and beliefs and about the consequences of each option given the particulars of her life.26
Do you agree? Is their advice practical for many indigent criminal defense lawyers with crushing caseloads? What would you do in such situations?
3.Suppose Mrs. Jones directly asks her counsel, “What do you think I should do? Please tell me.” Should they give her the advice she wants, or tell her politely that the decision is for her to make?
Counseling in tax practice confronts lawyers with difficult questions about how to promote compliance with the letter and spirit of the tax code in the face of client incentives to minimize their tax liability. Should 595lawyers advise clients in ways that help them take advantage of technically available, but questionable, loopholes that undercut the purpose of the tax? Should lawyers provide clients advice about the (negligible) likelihood of being audited if they suspect that information might lead clients to cheat on their tax returns?
As these questions suggest, ethical issues in tax practice reflect both the particular nature of its regulatory framework and the more general tensions arising from lawyers’ competing responsibilities. These issues have become more important as the nation has become increasingly dependent on revenue from self-reporting income tax systems. The Internal Revenue Service (IRS) budget has been slashed and the audit rate cut in half over the past decade; the Service can afford to audit only about 1 to 2 percent of returns.27 In the most recent year for which data is available, more than 150 million returns were filed, but the IRS brought only 800 cases of criminal tax evasion.28 Audits reveal high levels of underpayment. Estimates suggest that the annual tax gap—the difference between the tax collected and the tax owed—is around $450 billion, or 16.9 percent of the total tax liability.29 The low audit rates create a tax cheaters’ lottery—the only lottery in which the overwhelming majority of players are winners.30 One IRS-sponsored study revealed that 42 percent of all returns had some understatement of reported income, and surveys of taxpayers reveal even higher levels of evasion.31 Although about 80 to 90 percent of Americans say that cheating on taxes is morally wrong, substantial numbers of those individuals manage to rationalize their own noncompliance.32
Lawyers have been involved in some egregious examples of noncompliance with tax laws, as illustrated by the 2016 “Panama Papers” scandal. A Panama firm that specialized in secretive shell companies and illegal offshore tax shelters assisted some 14,000 clients in 100 countries before a leak of 11 million documents revealed the abuses.33 There is no reason to believe that this law firm is a unique bad actor; it was merely the one that got caught.34 The role of tax lawyers in widening or narrowing the compliance gap is the subject of the material 596that follows. To understand these problems, a brief overview of regulatory structures and bar interpretations is helpful.
Taxpayers face penalties for both fraud and accuracy-related violations not rising to the level of fraud. For fraudulent underpayments, taxpayers are subject to penalties of 75 percent of the amount due. 26 U.S.C. § 6663. For accuracy-related violations, taxpayers are liable for penalties of 20 percent of the resulting underpayment unless they can establish good faith and reasonable cause. 26 U.S.C. §§ 6662, 6664.
Tax preparers may also be subject to penalties. The Code imposes a penalty of $1,000 (or 50 percent of the income derived by the preparer with respect to the return in question, whichever is greater) if a tax return takes a position for which there was no “substantial authority” (so long as the preparer knew, or reasonably should have known, of the position). If the position is adequately disclosed, the penalty applies only if there was no reasonable basis for the position.35 However, if the understatement was due to a “willful attempt in any manner to understate” tax liability or “a reckless or intentional disregard of rules or regulations,” the preparer penalty goes up to $5,000 (or 50 percent of the income derived by the preparer with respect to the return in question).36
Further, under Circular 230, the IRS may also impose sanctions, including suspension or disbarment from practice before it, against any preparer who engages in disreputable conduct. Such conduct includes knowing provision of false or misleading information to the IRS.37 Circular 230 further provides that a practitioner may not sign a return if the preparer “knows or reasonably should know” that the return “[l]acks a reasonable basis” or is “a willful attempt . . . to understate the liability for tax or a reckless or intentional disregard of rules or regulations.”38 In general, a position is unreasonable “unless there is or was substantial authority for the position.”39 However, for tax shelters and reportable transactions, a transaction is unreasonable unless “it is reasonable to believe that the position would more likely than not be sustained on its merits.”40 The “more likely than not” standard is met “if the tax return preparer analyzes the pertinent facts and authorities and, in reliance upon that analysis, reasonably concludes in good faith that the position has a greater than 50 percent likelihood of being sustained on its merits.”41
597ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 85–352
(1985).
Rule 3.1 of the Model Rules states in pertinent part:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. . . .
On the basis of these rules and analogous provisions of the Model Code, a lawyer, in representing a client in the course of the preparation of the client’s tax return, may advise the statement of positions most favorable to the client if the lawyer has a good faith belief that those positions are warranted in existing law or can be supported by a good faith argument for an extension, modification or reversal of existing law. A lawyer can have a good faith belief in this context even if the lawyer believes the client’s position probably will not prevail. However, good faith requires that there be some realistic possibility of success if the matter is litigated. . . .
Your client has agreed in principle to pay $3.2 million for an apartment building and the acre of land on which it sits. The building is a wasting asset that may be depreciated (thus generating tax deductions over the useful life of the building). The land is non-depreciable. It is, therefore, in your client’s interest to attribute as much of the sale price as possible to the apartment building. The seller is indifferent to how the purchase price is allocated.
You have asked two real estate experts who often work with your firm for appraisals. One values the building at $1.6 million, and a second at $1.8 million. These figures strike you as somewhat higher than those that an entirely neutral expert would select, but they do not appear grossly inflated. Your client then finds another appraiser who values the building at $2.4 million. In your client’s view, that is a fairer estimate, and he would like you to prepare sales documents and tax returns using that figure. How do you respond? Is your advice affected by past experience indicating that if the IRS audits the return, they are likely to assume some overvaluation and may discount the value allocated to the building by about 10 percent regardless of which figure you use?
1.Problem 1 is a variation on a hypothetical appearing in a landmark survey of tax practitioners before the promulgation of Formal Opinion 85–352 (excerpted above). Under that hypothetical, the lawyer needed to price 598some stock of a closely-held family corporation in preparing an estate return. Two neutral experts put the stock’s value at about $50 per share. However, its book value was $30, and because it was a minority interest and would be hard to sell, it could have been discounted to $22.50. Surveyed practitioners were aware of the IRS’s practice of assuming some underreporting and attaching a “mendacity premium” to whatever value the taxpayer selected. Under those hypothesized circumstances, none of the surveyed practitioners would report the value of the shares at $50. About a third would report at $40, and the majority at $30 or less.42
Such attitudes have prompted several regulatory responses, including increased penalties for overvaluation and undervaluation of property (discussed above), requirements concerning the qualifications of appraisers in certain circumstances, and the “good faith/realistic possibility of success” standard of Opinion 85–352.
In 1990, Frederic G. Corneel published proposed Guidelines to Tax Practice Second with consultation by members of the ABA Section on Taxation’s Committee on Standards of Tax Practice. These Guidelines have also attempted to raise practice standards. They provide:
[W]hile there is nothing wrong in either the appraiser or the preparer giving the client the benefit of the doubt where the value [of property] is uncertain, any valuation involved in a return that we prepare must be responsibly done, make sense, be well-reasoned, and be internally consistent.43
2.If your firm generally supported the proposed Guidelines to Tax Practice, how would you proceed on the facts in Problem 1?
3.How important to your advice is the IRS practice of attaching a “mendacity premium” to reported values? Does the Service have any realistic alternative, given its resource constraints and the resulting incentives for taxpayers and appraisers? Can you permit a client to undervalue assets anticipating the IRS premium? Under these circumstances, is all fair in love, war, and IRS valuation disputes?
4.Should you ever discuss with your client the low probability of an audit? Tax law professor Tanina Rostain notes that attorneys
signal their own attitude toward the legal framework and the posture they believe a client should adopt—respectful, disdainful, alienated or other—through the ways they talk about the law as much as in the specifics they impart. . . .
A lawyer who has a socially responsible view of her role can make clear that taking into account a low audit rate is inappropriate in deciding whether to claim a deduction, even while she provides the specific information. When not assuming the persona of “bad men,” people are often responsive to the argument that if everyone based their decision to pay taxes on low 599enforcement rates, government would grind to a halt. Communicating enforcement information is not inconsistent with expressing one’s view that it is irrelevant in most circumstances to the issue of compliance.44
Do you agree?
5.An experienced corporate tax expert recalls the following situation. A long-time client came to him and said, “I’d like to get your off-the-cuff reaction about whether the deal I’m putting together is legal. I absolutely don’t want you to do any research or get anyone else to do research. I just want to hear what you think. If your gut reaction is that it’s legal, I’m willing to bet that the IRS is never going to call me on it.” The lawyer understood the client’s point: If he researched the law, he might find out that the deal was improper. The client did not really want to know whether the law supported his deal. He wanted to know only whether the deal looked good enough not to raise an expert’s suspicions.
Can the lawyer answer the client’s question as posed? Does Rule 2.1 give any guidance? How should the lawyer proceed with the conversation?45
6.The issue of tax compliance gained increased public attention during the 2016 presidential campaign. Media reports showed that President Donald Trump and his companies had been involved in over a hundred lawsuits and legal disputes concerning taxes in the decade before his election as president.46 Some involved property valuations. For example, in a financial disclosure form prepared for his presidential campaign, President Trump valued a Westchester golf club at over $50 million, while at that same time he argued in a tax assessment dispute that it was worth only $1.4 million.47 If you had been one of President Trump’s lawyers, how would you have advised him concerning such disparities in value?
7.Does ABA Formal Opinion 85–352 establish an adequate ethical standard? Some commentators have recommended more demanding requirements that would allow lawyers to advance only positions they reasonably believe to be meritorious. By contrast, other commentators believe that if requirements for lawyers extend too far beyond those that seem acceptable to most taxpayers, they will rely on accountants and other service providers instead, or will shop for attorneys willing to skirt their ethical obligations. These commentators believe that other reforms aimed at underreporting would be preferable, such as increased penalties or expanded enforcement resources.48
Are such alternatives politically realistic? Consider W. Bradley Wendel’s argument that the rule of law in tax practice would be undermined 600if lawyers refused to interpret tax law in good faith based on its obvious intent.49
Your client, a full-time physician, raises poodles, which she enters from time to time in local competitions. An acquaintance recently told her that it is possible to deduct the expenses connected with her dogs if she is showing them professionally. She seeks your advice. Although she considers herself “something of a professional,” she would never consider selling any of her four dogs, and the prizes at local competitions are far too small to defray her costs.
Under Treasury Regulations § 1.183–2, the costs of an activity are nondeductible if the taxpayer engages in it primarily as a hobby, but are deductible if the taxpayer enters into the activity with the objective of making a profit. Factors relevant in assessing whether the activity is for profit include whether it is carried on in a businesslike fashion with appropriate books and records, the taxpayer’s expertise, and the time and effort expended on the activity.
1.How do you advise your client? If she never kept books and records in the past, may you advise her to begin now and prepare a return claiming the dog expenses as a deduction?
2.Where is the dividing line between manufacturing intent and helping clients “put their best foot forward”? Should you ask your client whether she is trying to make a profit before you explain the relevant regulations? If she says no, is she bound by her initial uninformed statement of purpose?
3.In tax contexts, a recurring question is whether clients should be bound by the way they characterize their motives before they become aware of the tax consequences. For example, a frequently quoted exchange among tax experts involves a hypothetical in which a client indicated that he would like to “save some tax money” by splitting a corporation into two entities after a friend reportedly “divided his business and saved quite a bit.”50 Under regulations then applicable, deductions were not available if the “principal purpose” of the split was to achieve a tax advantage. According to one practitioner, the client’s opening statement should not deprive him of the “right to an examination of his factual situation and legal advice as to what his rights are. . . . [An attorney could appropriately] explore the situation to see whether or not . . . there was justifiable basis for proceeding on a basis other than the tax advantage alone.”51 By contrast, David Herwitz, a Harvard Law School tax specialist, observed:
601[W]hen a fellow has come in and stated his objective in the way described here, . . . [although] there may well be some other quite adequate business reasons [for the split], there is a real question as to whether one could ever overcome the likelihood of the stated purpose being at least a major purpose, since it is the only one the client starts with on his own.52
Ethics professors divide along similar lines. One view is that individuals are naturally inclined to recollect facts in ways that favor their interests, so clients are entitled to know what their interests are before they commit themselves to a particular version of the truth. Any alternative view would penalize less sophisticated clients. Other commentators make similar factual assumptions but arrive at a different conclusion. From their perspective, providing a motive for lying and then asking for the truth asks too much of human nature. While sophisticated clients may be better able to deceive without assistance, it does not follow that a lawyer’s role is to give everyone equal skills in deception.
Where do you fall in this debate? What considerations would be relevant to your decisions to assist the taxpayer in Problem 2?
4.If you advise the client in Problem 2 that the IRS is likely to disallow the proposed exemptions, but she wishes to disregard your advice, should you withdraw from representation?
5.Former federal judge and legal scholar Richard Posner notes that “brilliant lawyers create, discover, and enlarge tax loopholes. This activity is purely redistributive; there is no social gain. In fact there is a net social loss . . . because their beaver-like activities require more carefully drafted and complex tax codes.”53 He quips: “Social welfare might increase if the IQs of all tax lawyers could be reduced by 10 percent.”54 Is there any problem with tax lawyers advising clients on the legality of loopholes that they themselves have devised?
Lawyers in divorce and custody cases play a variety of roles. Which roles a practitioner assumes depends in part on clients’ objectives, but also on the attorney’s own values.
At one end of the spectrum are “bombers”—lawyers who identify strongly with the neutral partisan function described in Chapter 4. From their perspective, the attorney’s job is to get clients the result they want, as long as those results are not illegal.55 Since divorce rarely brings out the best in human relationships, what some clients want is for their spouses to suffer as much as possible. For the bomber, the counseling role involves mainly strategic planning and tactical advice about how to 602achieve whatever financial and psychological objectives that their clients identify. According to one lawyer interviewed by a former chair of the ABA Family Section’s Ethics Committee, “[n]early all divorce practitioners criticize the bomber . . . but in the current moral climate, nothing succeeds like success.”56
At the other end of the spectrum are lawyers who view themselves as constructive problem solvers and officers of the court with a clear affirmative duty to foster an appropriate resolution for children as well as clients. From this perspective, attorneys’ primary counseling obligation is to help divorcing spouses reach durable financial agreements and maintain cooperative parenting relationships. A growing number of these lawyers adopt the collaborative approach described above.
Some other lawyers place a high priority on minimizing the emotional wear-and-tear of family disputes. These practitioners often view their clients as “volatile,” “irrational,” and “unrealistic.”57 For these attorneys, the objective is to avoid emotionally-laden discussion and to help parties concentrate on the nuts-and-bolts aspects of their agreement.
Of course, these role descriptions reflect extreme types; most attorneys’ actual behavior relies on a mix of strategies that vary across cases. Much may depend on the needs of clients, their relationships with their spouses, and (if applicable) the interests of children. However, research on family practitioners also reveals significant differences in lawyers’ approaches to their role. For example, in one study that asked lawyers to identify their goal in representing matrimonial clients, about a third reported that they sought a fair settlement. A quarter reported that they attempted to get “the most for the client,” and about 40 percent reported mixed strategies.58 All of these approaches can raise ethical concerns, but some are obviously more problematic than others.
The difficulties with the bomber strategy are readily apparent. A lawyer who helps a client punish a former spouse or obtain a skewed agreement may be undermining the client’s long-term interests in establishing sustainable settlements and co-parenting relationships. Such interests, although hard to quantify, may have far more enduring value than the financial gain available through hard-ball tactics. Moreover, experts universally agree that open conflict between parents 603causes significant difficulties for children, and that those adverse effects are likely to be felt by all members of the family.59
A different set of difficulties arise for lawyers who see themselves as officers of the court with responsibilities to the entire family. In an ideal world, perhaps, children would remain in close contact with both parents, who would live near enough and have a sufficiently cooperative relationship to make such contact possible. In the real world, however, the interests of parents and children are not always fully consistent or compatible, and hard tradeoffs are sometimes necessary.
Finally, lawyers who attempt to dodge emotional issues also may be ill serving their clients’ long-term interests. Family disputes often trigger deep anxiety, stress, anger, and guilt. Yet many individuals who experience such difficulties do not obtain assistance from mental health professionals. Clients who are deterred by the cost and perceived stigma of therapy may want or need assistance from their attorneys in coping with the psychological dimensions of divorce. Counsel who have special expertise, experience, or simply distance from the family situation can often provide a crucial perspective. Their assistance may encourage clients to adopt a long-term perspective, to give adequate consideration to their children’s welfare, or to obtain support from other sources in the community. By contrast, lawyers who focus on narrow legal and financial issues too often end up talking past concerns that are most central to clients’ well-being. For further guidance, consider the excerpt below.
American Academy of Matrimonial Lawyers, Bounds of Advocacy: Goals for Family Lawyers
(2000).
Preliminary Statement
The traditional view of the matrimonial lawyer (a view still held by many practitioners) is of the “zealous advocate” whose only job is to win. However, the emphasis on zealous representation of individual clients in criminal and some civil cases is not always appropriate in family law matters. Public opinion (both within and outside the AAML [American Academy of Matrimonial Lawyers]) has increasingly supported other models of lawyering and goals of conflict resolution in appropriate cases. A counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family is one model; this is sometimes referred to as “constructive advocacy.” Mediation and arbitration offer alternative models. . . .
Matrimonial lawyers should recognize the effect that their words and actions have on their client’s attitudes about the justice system, not just on the “legal outcome” of their cases. As a counselor, a problem-604solving lawyer encourages problem solving in the client. Effective advocacy for a client means considering with the client what is in the client’s best interests and determining the most effective means to achieve that result. The client’s best interests include the well-being of children, family peace, and economic stability.
These Bounds [of Advocacy] reaffirm the attorney’s obligation to competently represent individual clients. These Bounds also promote a problem-solving approach that considers the client’s children and family as well. In addition, they encourage efforts to reduce the cost, delay and emotional trauma and urge interaction between parties and attorneys on a more reasoned, cooperative level.
1.3An attorney should refuse to assist in vindictive conduct and should strive to lower the emotional level of a family dispute by treating all other participants with respect.
Comment
. . . Although the client has the right to determine the “objectives of representation,” after consulting with the client the attorney may limit the objectives and the means by which the objectives are to be pursued. The matrimonial lawyer should make every effort to lower the emotional level of the interaction among parties and counsel. Some dissension and bad feelings can be avoided by a frank discussion with the client at the outset of how the attorney handles cases, including what the attorney will and will not do regarding vindictive conduct or actions likely to adversely affect the children’s interests. If the client is unwilling to accept the attorney’s limitations on objectives or means, the attorney should decline the representation.
1.5An attorney should attempt to resolve matrimonial disputes by agreement and should consider alternative means of achieving resolution.
2.3An attorney should keep the client informed of developments in the representation and promptly respond to communications from the client.
Comment
. . . Frequent communication with the client on important matters (1) empowers the client, (2) satisfies the client’s need for information about the progress of the case, (3) helps build a positive attorney-client relationship, and (4) helps the client understand the amount and nature of the work the attorney is performing, thereby reducing concern that nothing is happening and that the attorney’s fees are not being earned. While the attorney should understand that a pending divorce is usually the most important matter in the life of the client, the client should understand that a successful lawyer has many clients, all of whom believe their case to be the most important.
6052.5When the client’s decision-making ability appears to be impaired, the attorney should try to protect the client from the harmful effects of the impairment.
Comment
The economic and emotional turmoil caused by marital disputes often affects a client’s ability to make rational decisions in his own best interest. . . .
The lawyer is not compelled to follow irrational or potentially harmful directives of a client, particularly one who is distraught or impaired, even if the client is legally competent. The lawyer should oppose any client’s illegal or improper decision (“I don’t care what the court says, I won’t pay her a cent”). The attorney should attempt to dissuade the client before accepting any clearly detrimental decision. The attorney should consider consulting others who might have a stabilizing influence on the client such as the client’s therapist, doctor or clergy. It would normally be improper for the attorney to seek appointment of a guardian in such a situation because to do so may be expensive, traumatic and adversely affect the client’s interest.
When rejection of the attorney’s advice is likely to adversely affect the client’s interests, the attorney should document both the advice and the client’s refusal to follow it. Such documentation emphasizes the risk to the client and protects the attorney from subsequent allegations of complicity in the conduct or failure to properly advise the client of the risks involved. In appropriate cases, the attorney may withdraw from representation.
6.1An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on the minor children.
6.2An attorney should not permit a client to contest child custody, contact or access for either financial leverage or vindictiveness.
Comment
Tactics oriented toward asserting custody rights as leverage toward attaining some other, usually financial, goal are destructive. The matrimonial lawyer should counsel against, and refuse to assist, such conduct. Proper consideration for the welfare of the children requires that they not be used as pawns in the divorce process. . . . If despite the attorney’s advice the client persists, the attorney should seek to withdraw.
a)One of your current clients is an especially anxious and lonely older man. He calls frequently for advice about matters somewhat related 606to his divorce, but it seems plain that he primarily wants to talk. You have made clear to him that all the time spent on telephone conversations will be billed at your standard hourly rates. He says he understands and pays your fees regularly without complaint. The frequency of his calls is increasing and the press of other work leaves you unwilling to return some of those calls.
How does your conduct square with bar ethical rules and the Matrimonial Lawyers Standards of Conduct? Should you be subject to any sanctions for failing to make prompt responses? What strategies for coping with such a client would be appropriate?60
b)You represent a severely depressed woman in a custody dispute over her four- and eight-year-old sons. Her former husband is seeking to reopen the couple’s original divorce agreement. That agreement gave the parties joint legal custody and the mother physical custody. The father now claims that your client is unable to cope with the needs of the children and that her vindictiveness toward him has made the joint custody arrangement unworkable. He notes that his older son never does his homework and is not involved in any school activities. His younger son appears deeply conflicted about the divorce, in part because your client makes accusations that undermine the child’s relationship with him. Finally, he believes that a man who is now dating your client has abused the children, and is not a good influence in their development. If the father’s efforts to obtain physical custody of the boys are unsuccessful, he plans to have no further contact with them. Although he would retain formal custodial rights and would continue to pay child support, the father would stop visiting and calling his sons.
Your client denies that any physical abuse has taken place, although she concedes that her new partner once spanked the boys under circumstances calling for discipline. While acknowledging that he is not particularly “good with children,” your client believes that her new partner will improve over time. Although she knows she has not been spending enough time with the boys since the divorce, she expects that will change as well. She is determined neither to make any concessions concerning custody, nor to suppress her criticism of her former husband in the children’s presence. When you indicate that this conduct may be harming the boys, she responds that the real harm was her husband’s emotional abuse, which ended their marriage. When you suggest that she might benefit from counseling, she tells you that she has already spent more than she can afford on psychiatrists and that what she needs now is a tough lawyer. Your client also believes that her former husband is now having a closeted relationship with a former prostitute, which does not bother her but might bother the judge who will make the custody determination.
607References: Rules 1.1, 1.2, 1.4, 2.1.
1.If you were the lawyer in Problem 3, how would you proceed in each case? What factors would be relevant to your decision? Does the American Academy of Matrimonial Lawyers material above supply helpful guidance?
2.Under what circumstances should the lawyer withdraw from family law representation? For more on withdrawal, consider Chapter 5, Section E and Rule 1.16. Are there contexts in which the interests of unrepresented children would argue for measures other than withdrawal?
3.Some attorneys in contentious cases advise their clients to contact feared adversaries in the family law bar and share some confidential information with them, in order to conflict them out of representing the other side. Is this ethically appropriate advice? What about advising clients to pay attorneys’ fees by credit card, so that the fees become marital debts that get split between the divorcing spouses?
Lawyers for corporations often take their daily directions from managers who have a strong vision of precisely what they want their lawyers to do. Corporate lawyers, in turn, are often economically dependent on their clients, particularly if they are in-house counsel, as we will see in the next chapter. These features of corporate practice may compromise the very independence that is considered necessary to render effective legal advice. Consider Robert Gordon’s discussion of the responsibilities that such lawyers face, and the choices available to them.
Robert W. Gordon, “The Independence of Lawyers”
68 Boston University Law Review 1, 26–28, 71–75 (1988).
Take one of the most routine contexts of business law practice, compliance counseling. The client hopes to seize a profitable opportunity. The plan is routed through the lawyer’s office and is seen to pose a potential problem: Some legal doctrine or regulation arguably prohibits the plan. What can the lawyer do? Here is a simple, nonexhaustive array of the types of advice a lawyer can give in the context of compliance counseling. The lawyer might advise that:
a)The plan in its current form is prohibited;
b)The plan is clearly prohibited, but the risk of detection is slight or, if significant, expected profits will still exceed the likely penalties;
c)Same as (b) except that the lawyer advises that there is a non-negligible risk of getting caught and being exposed to later liabilities, so that prudence dictates forbearance;
608d)The form of the plan is clearly prohibited, but can be cosmetically recast in another form that will accomplish its essential purposes;
e)The substance of the plan is clearly prohibited, but can be made legal if altered in some substantive particulars;
f)The plan contravenes the regulations’ basic purposes, but it technically complies with the regulations, and is legal;
g)Same as (f), except that the lawyer advises that the plan is illegal;
h)Same as (f), except that the lawyer advises that the plan is only technically legal, and that there is some risk that the regulators or courts will be interested in substance rather than form;
i)Same as (f), except that the lawyer advises that although adoption of the plan is technically legal, outsiders may perceive it as immoral or unscrupulous, so that for the sake of appearances or morale the plan should be altered or abandoned;
j)Same as (f), except that the lawyer advises that the plan, though it may survive technical review, is wrong—violative of general norms of responsible social conduct expressed in existing or emergent legal tendencies—and should not be adopted;
k)Same as (f), except that the lawyer recommends an alternative business plan that accomplishes most of the purposes of the original while also promoting the underlying spirit of the law;
l)Though the plan conforms to the underlying purposes of the law, some regulator may disapprove it on technical grounds, and the company should not (or may not want to) take the risk of sanctions;
m)Because the plan complies in spirit, sanctions would be an unfair form of harassment by narrow-minded, overly-zealous regulators or opportunistic adversaries; as such, the plan should be adopted and sanctions aggressively resisted;
n)The plan does not comply with the law, but because the law is an unfair and misguided interference with business judgments, the lawyer will work for legal reform through the lawyer’s bar association, suggest changes to the trade association’s lobbyists in the capital, recommend nonenforcement strategies to or seek exemptions from influential administrators, etc.
And so on.
Suppose the lawyer expresses opposition to the plan in deliberations, but is overruled. Once again, several courses of action are available to the lawyer, who might:
a)acquiesce in the adverse decision at the first sign of opposition;
b)press the point, using the techniques of advocacy to try to induce a change of mind;
609c)continue to oppose the plan, carrying objections to a higher level of management or the Board;
d)acquiesce, and zealously help to execute the plan;
e)seek discreetly to modify the obnoxious features of the plan, perhaps by influencing middle-managers to execute it cautiously;
f)insist upon recording objections, reservations, or adverse-risk assessments in Board minutes, opinion letters, or formal memos to the file;
g)refuse to participate further in implementing the plan, but agree to represent the client if an adversary proceeding results;
h)withdraw from the representation of that client entirely;
i)whether or not the lawyer withdraws, warn that if the client goes ahead with the plan the lawyer will disclose;
j)continue to represent the client, but work through writings, bar associations, political pressure groups, public interest lobbies, advice to political candidates, influence with officials, etc., to tighten regulation of the conduct called for by the plan.
These are naturally just a tiny handful of the choices to be made regarding the form and content of advice given in the course of compliance counseling, the persons in the organization to whom such advice is given, the tactics one can resort to if one meets opposition. All these choices—except disclosure and withdrawal, which may be regulated—are well within the conventional boundaries of the counselor’s role. . . .
Obviously most lawyers, or at least lawyers for big, powerful companies, will avoid abrasive and unnecessary confrontations with their clients. They will phrase negative advice as prudential rather than moralistic, supporting their recommendations with reasons that sound much more like statements of technical rules or empirical predictions of risks and results than political or moral judgments. . . .
Perhaps no case has raised the question Gordon asks more pointedly than the 2001 collapse of the giant energy company, Enron, in 2001, which (as you will recall from Chapter 6’s discussion of confidentiality) was the result of a massive accounting fraud. In particular, Enron officers structured complex transactions designed to move losses off of Enron’s books and onto the books of “special purpose entities” (SPEs) created solely for the purpose of hiding Enron’s true financial condition. This was illegal. Nonetheless, Enron was able to secure the counsel of well-respected Texas law firms (Vinson & Elkins and Andrews & Kurth) to provide legal opinions as to the validity of some of the transactions. Specifically, it was revealed that the lawyers for Enron engaged in the following activities:
610Enron’s collapse wiped out more than $1 billion in shareholder equity and caused 15,000 employees to lose their jobs, many of whom also lost their pensions. What explains the Enron lawyers’ conduct and what could they have done to counsel their client more effectively?
Robert W. Gordon: “A New Role for Lawyers?: The Corporate Counselor After Enron”
35 Connecticut Law Review 1185 (2003).
It is clear that the advice both in-house lawyers and outside law firms gave to the managers of Enron and other companies like it was instrumental in enabling those managers to cream off huge profits for themselves while bringing economic ruin to investors, employees, and the taxpaying public. Although the lawyers were not principally responsible for these acts of waste and fraud, their advice was a contributing (and often necessary) cause of those acts. Such fraud could not have been carried out without the lawyers’ active approval, passive acquiescence, or failure to inquire and investigate. Nonetheless, not only the lawyers involved but large numbers of practitioners and bar committees have few or no regrets about the part they played. They vigorously justify their conduct as consistent with the highest conceptions of legal, ethical, and professional propriety, and just as vigorously resist all attempts to change the legal and ethical rules so as to increase their obligations as gatekeepers and monitors of managers’ conduct. This attitude is not universal—there are prominent corporate lawyers who dissent from it, 611and think the profession is failing to live up to its responsibilities; but it is pervasive.
How are we to understand why the lawyers acted as they did, and why they are justifying their actions now? Observers from outside the profession, and even some from within the profession, are tempted to say that the lawyers were simply weak and corrupt, or, for those who prefer to talk this way, that the lawyers were rational economic actors. They want the client’s business, in an intensely competitive market, and so they will wish to approve anything senior management of the client firm asks, averting their eyes from signs of trouble and their noses from the smell of fish. . . .
But this is the amoral rational calculator’s perspective, and professionals in high-status jobs at respectable blue-chip institutions do not like to think of themselves as amoral maximizers. Like human beings everywhere who want to enjoy self-respect and the esteem of others, they tell stories about how what they do is all right, even admirable; however, some of the stories that the lawyers would like to tell were not available in this situation. . . .
C.“We Din’ Know Nothin”: The Lawyer as Myopic or Limited-Function Bureaucrat
These are claims that the lawyers were not at fault because their role was limited: We didn’t know, we weren’t informed; the accountants said the numbers were okay; management made the decisions; our representation was restricted to problems on the face of the documents or to information submitted to us.
Many of these claims of innocent ignorance now look pretty dubious. Some of the outside law firms, such as V & E and Andrews & Kurth, in fact worked closely with Andersen accountants in structuring many of the transactions. . . . Some of their claims of limited knowledge are plausible, however, because Enron never trusted any one set of lawyers with extensive information about its operations—it spread legal work out to over 100 law firms. . . . One question for lawyers—as well as for senior managers and board members—is whether they can conscientiously and ethically do their jobs and exercise their functions as fiduciaries in organizations structured to diffuse responsibility and prevent their access to the big picture.
D.The Lawyer as Advocate
The classic defense of the corporate lawyer’s role, both most often advanced and held in reserve if other defenses fail, is of course that we are advocates, whose duty is zealous representation of clients. We are not like auditors, who have duties to the public; our duties are only to our clients. Our job is to help them pursue their interests and put the best construction on their conduct that the law and facts will support without intolerable strain, so as to enable them to pursue any arguably-legal ends by any arguably-legal means. . . .
612III.INADEQUACY OF THE EXCUSES
The Enron and similar scandals illustrate the limits of all these standard stories as adequate accounts of the corporate lawyer’s proper role. . . . It may be that a natural person cannot be compelled to internalize the values promoted by law. . . . [But] since we are free to construct the character of these artificial [corporate] persons, we should construct them for legal purposes as good citizens, persons who have internalized the public values expressed in law and the obligation to obey even laws they do not like, for the sake of the privileges of the law that generally benefits them as well as the rest of us. . . .
If the corporation should be constructed and presumed to have the interests of a good, law-respecting, citizen, so should its lawyers (even more so). Lawyers are not simply agents of clients—they are also licensed fiduciaries of the legal system, “part of a judicial system charged with upholding the law,” to use the ABA’s words. . . .
[A]lthough lawyers may take on an assignment that limits the scope of their representation or asks them to accept some facts as given, they may not agree to such limits as will preclude them from competent and ethical representation. They should not, for example, agree to write an opinion certifying the legality of a deal to third parties if they have some reason to be suspicious of the facts or numbers reported to them, without doing some digging to ensure that the facts are accurate. Nor should they give assurances that certain facts are true if they have no independent means of verifying them. . . .
The most important lessons of Enron, et al., for lawyers are the additional clouds of doubt they cast on the most common defense of the corporate lawyer’s role, and the one most often invoked by the profession in the current debates over reform. That is the corporate lawyer as adversary-advocate. The usual way in which this role is framed is that the lawyer’s loyalty runs to the client and only to the client. The lawyer must help the client realize its goals and desires, recognizing as hard limits only such legal constraints, the “bounds of the law,” as the most ingenious interpretations he can construct of fact and law that are most favorable to his client’s position. . . .
This idea that the role of the corporate lawyer is really just like the role of the criminal defense lawyer has been criticized so often and so effectively that it always surprises me to see the idea still walking around, hale and hearty, as if nobody had ever laid a glove on it. I will quickly run through some of the strong objections to the analogy and then add another objection: The bar’s standard construction of the corporate lawyer’s role is deficient in part because it does not take the analogy seriously enough. . . .
The most obvious objection is that legal advice given outside of adversary proceedings is not subject to any of the constraints of such proceedings. The reasons that the lawyer is given so much latitude to 613fight for his client in court is that the proceedings are open and public, effective mechanisms such as compelled discovery and testimony exist to bring to light suppressed inconvenient facts and make them known to adversaries and adjudicators, adversaries are present to challenge the advocate’s arguments of law and his witnesses’ and documents’ view of facts, and there is an impartial umpire or judge to rule on their sufficiency and validity. . . . Outside of such settings, one-sided advocacy is more likely to help parties overstep the line to violate the law, and to do so in such ways as are likely to evade detection and sanction, and thus frustrate the purposes of law and regulation. . . .
The point I want to add to these standard, but valuable, points is a simple one. Corporate lawyers could actually learn something useful from the role of the criminal defense lawyer. And that is that the adversary-advocate’s role—like that of all lawyers—is in large part a public role, designed to fulfill public purposes: The ascertainment of truth and the doing of justice; the protection of the autonomy, dignity and rights of witnesses and especially of the accused; and the monitoring and disciplining of police and prosecutorial conduct. . . .
The real lesson from the defense lawyer’s or advocate’s role is simply that the [corporate] lawyer is, in addition to being a private agent of his clients, a public agent of the legal system, whose job is to help clients steer their way through the maze of the law, to bring clients’ conduct and behavior into conformity with the law—to get the client as much as possible of what the client wants without damaging the framework of the law. He may not act in furtherance of his client’s interest in ways that ultimately frustrate, sabotage, or nullify the public purposes of the laws—or that injure the interests of clients, which are hypothetically constructed, as all public corporations should be, as good citizens who internalize legal norms and wish to act in furtherance of the public values they express.
IV.TOWARDS AN ALTERNATIVE CONCEPTION OF THE CORPORATE COUNSELOR’S ROLE
The view that I am pressing here of the corporate counselor’s role is neither new nor unorthodox. It is in fact one of the traditional conceptions of the counselor’s role in our legal culture, with a pedigree quite as venerable and considerably more respectable than the rival notion of the lawyer as zealous advocate or hired gun. It was regularly invoked by leading lawyers throughout the nineteenth century and surfaced as an express ethical standard in the ABA’s first Canons of Ethics, promulgated in 1908:
Canon § 32: No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is entitled to receive, nor should any lawyer render, any service or advice involving disloyalty to the law, whose ministers we are . . . or deception or betrayal of the public. . . . The lawyer . . . advances the honor of his profession and the best interests of his 614client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication, he is free and entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. . . .
Since the 1970s, this conception of the wise-counselor-lawyer-statesman has been in decay. It is no longer recognized by most corporate lawyers as a norm. It has almost no institutional support in the rules and disciplinary bodies that regulate the profession. Some academic lawyers still support some version of it; and so too do some judges and regulators. It resurfaces on occasion after business disasters such as the savings-and-loan and Enron scandals. The SEC, IRS, banking regulators, and the courts have sporadically revived it and brought enforcement actions in its spirit. Bar commissions on professionalism sometimes nostalgically evoke it. Yet even where it still has some residual influence there are no effective sanctions behind it. . . .
We cannot hope to revive the counselor’s role as the profession’s dominant role or self-conception or practical way of life. But events like the Enron collapse make one realize that the corporate counselor would still have a useful role to play, if one could revive it as one of the legal profession’s many roles, to be deployed on occasions where clients and society would be best served by independent, public-regarding legal advice. . . . I will limit my job here to trying to spell out what I think would be the essential elements of the counselor’s role. . . .
The most basic is this: That the lawyer engaged as a counselor adopt an independent, objective view of the corporate agents’ conduct and plans and their legal validity. This emphatically does not mean that the counselor must take up an adversary stance to the client. . . . Counselors can and should be as creative as any other good lawyers in devising means to accomplish clients’ objectives that will overcome and work around legal objections, and in devising innovative arguments that will alter and expand the boundaries of the existing law. But whatever advice the counselor gives, she should: (a) Construe the facts and law of the client’s situation as a sympathetic but objective observer such as a judge, committed to serving the law’s spirit and furthering its public purposes, would construe them; (b) impute to the corporate client the character of the good citizen, who has internalized legal norms and wishes to comply with the law’s legitimate commands and purposes while pursuing its own interests and goals; and (c) be based on an interpretation and practical application of the law to the client’s situation that helps the client, so constructed, to satisfy rather than subvert the purposes of the law. . . .
When the counselor asserts facts or makes a legal claim or argument to authorities or third parties—outside the context of fully adversary 615proceedings where all interested parties have effective access to relevant facts and legal knowledge necessary to forming the opinion—they should generally be facts and arguments that a fair-minded and fully-informed observer could accept as plausible and correct. . . .
If the counselor perceives that her services have been or are being used to further, or even just to facilitate by providing plausible cover for, corporate strategies that could not be justified to a fully-informed objective observer as conforming to the letter, spirit, and public purposes of the law, she has to take steps to correct the problem and to try to bring the client’s agents back into compliance. This means that if she has suspicions she should investigate them; if not satisfied, she should bring the problem to the general counsel, CEO, and if necessary, the board of directors to insist on compliance; and if corrective steps are not taken, she must resign. Finally, if serious damage to outside interests may result from the agents’ misconduct, she must signal the problem to people such as regulatory authorities who could prevent it.
I can already hear the cries of protest: “But this is not the lawyer’s role!” The obvious answer to that is, yes, I know that it is not the lawyer’s role as most corporate lawyers and the bar now see that role; but that is precisely the problem that the savings-and-loan and Enron, etc. scandals have suggested needs to be solved. . . .
[T]he full-scale version of my proposal would have to contain at least two more components. First, there should be government mandates that for some representations and transactions, corporations must hire lawyers who have undertaken the role and accompanying obligation of counselors. For example: lawyers certifying compliance with laws, regulations, orders, consent decrees, or reporting requirements of official agencies; lawyers giving opinions to satisfy disclosure requirements or filing proxy statements under the securities laws; and lawyers giving opinions on conformity with tax laws on tax-minimization devices. . . .
Second, there should be effective institutionalization of and support for the counselor’s role, incentives to perform it, and sanctions for breaches. . . . Obviously, [lawyers] would be subject to special regimes of judicial enforcement, civil liability, and malpractice; and, where practicing before agencies such as the SEC or IRS, to administrative discipline. . . .
1.Consider the defense that Vinson & Elkins offered of its conduct in Enron: “When clients ask us [if they can do something] our job is to . . . figure out if there is a legally appropriate way to do it. That’s what we do. And so does every other law firm in America.”61 Is that vision consistent with the Model Rules? Is it ethical? What would Robert Gordon say?
6162.What other factors might account for lawyers’ involvement in ethically problematic transactions? In 2000, Enron was Vinson & Elkin’s largest client and a frequent source of lateral employment for its attorneys. The firm billed the company between $27 and $30 million in services, almost two dozen of its lawyers had obtained jobs with Enron since 1991, and Enron’s general counsel and deputy general counsel were both former Vinson & Elkin partners.62 If this revolving door is a problem, what is the solution?
3.In many cases like Enron, problems are exacerbated by law firms’ eat-what-you-kill compensation structures that tie individual partners’ financial and professional status to their client billings. When lawyers believe that a client will readily find some other firm to push the envelope, they may see little point in withholding assistance.63 Are there measures that firms, bar associations, or legislators could take?
4.Although Enron’s top management were convicted of fraud and conspiracies, their lawyers were never officially punished. However, in 2006, Vinson & Elkins did agree to pay $30 million to Enron’s bankruptcy estate in exchange for relinquishment of any claims that it had aided and abetted fraud that contributed to the company’s collapse.64 Do you think the $30 million payment was justified? Was it sufficient?
5.Geoffrey Hazard writes:
Many courses of action taken by a client are “wrong” at least in the exacting sense that they are not what would be done by a supremely moral person unconcerned with costs. If this were the standard by which a lawyer should judge whether to continue his association with a client, there would be few of either clients or lawyers.
In recent years, some critics of the legal profession have suggested that a lawyer for a corporation is responsible for its conduct in at least two related respects: his advice to such a client should consist not merely of what the client legally might do but also of what the client morally ought to do; and he should not serve a client who is not disposed to follow advice of that character. . . . It is perfectly possible to think that the lawyer for the criminal accused is not “responsible” for him, while at the same time thinking that the general counsel for a corporation or agency is, in some sense of the word, “responsible” for it. The point is made by suggesting that it is one thing to represent a sometime murderer, quite another to be on retainer to the Mafia. . . .
The obvious answer for the adviser whose advice is ignored is that he can resign. In some circumstances that is the only honorable 617course to be followed, but it is impractical as a response to all except fundamental disagreements. . . .
There are situations in which it seems proper that the client should suffer that kind of penalty, for example if he insists on fabricating evidence or carrying out a swindle. But if the case is less extreme than this, the sanction of resignation is too severe. It implies that the client should have to function without proper guidance, or perhaps cease functioning at all, because its managers do not see fit to follow the advice of its advisers.
If this were the consequence that should ensue from a client’s refusal to follow advice, it would mean that the advice was in effect peremptory—not an informed suggestion but a command. When an adviser’s advice is in effect peremptory, however, the result is a reversal of the underlying structure of responsibility for the organization’s conduct. The adviser becomes the ultimate arbiter and the client a subordinate.65
How do you think Hazard would evaluate the Enron lawyers’ actions? How does Hazard’s vision of the corporate lawyer as counsel differ from that articulated by Gordon above? Whose position do you find more persuasive?
6.Wharton Business School professor Scott Armstrong gave groups of executives a hypothetical situation facing a pharmaceutical company’s board of directors. In the hypothetical, one of the company’s most profitable drugs, which accounts for 12 percent of the company’s profits, is found to cause between fourteen and twenty-two unnecessary deaths a year. Unless the company puts up a fight against regulatory action, the drug is likely to be banned by regulators since a competitor offers a safe alternative.
Faced with these facts, Armstrong found that 80 percent of executives decided to continue marketing the product. They also opted to take legal and political action to fight the potential ban. But when individuals with similar backgrounds were asked for their personal views on the same hypothetical, 97 percent believed that continuing to market the drug was irresponsible.66 What, if anything, does this case study reveal? When lawyers observe such dynamics in a client organization, how should they respond?
You are a litigation partner in a small Midwestern law firm. One of the firm’s major clients manufactures a profitable chemical solvent that is currently under investigation by the Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA). Certain recently published data, as well as your client’s own preliminary studies, suggest that prolonged contact with the solvent during manufacture or use may slightly increase the risks of cancer and birth defects among exposed workers. Total elimination of these risks would 618be prohibitively expensive. Less toxic substitutes for the solvent are available from competing firms, but at substantially higher costs.
Government data also indicate that improper disposal of the product after use could create hazards if significant amounts of the product enter the groundwater. Current EPA standards prohibit discharges above .50 grams per liter of effluent. Compliance with that standard is quite expensive. You know from informal sources that violations of .75 or less are largely ignored because of the EPA’s limited enforcement budget and that inspections are relatively rare in the rural areas where your client’s plants are located. Furthermore, EPA officials typically issue a warning before applying sanctions unless the violation is extreme (more than 1.5 grams per liter). Your preliminary investigation reveals that some of the client’s plants routinely release the solvent at levels between .75 and 1.00 grams per liter.67
In your judgment, the client has a non-frivolous but unconvincing argument that continued manufacture and sale of the solvent is lawful under prevailing standards. You also believe that those standards should, and soon will be, strengthened. However, by pursuing all procedural opportunities, your firm could probably delay application of any standards banning domestic manufacture and sale of the solvent for several years. Even after that point, the company could continue to export stockpiled inventory to developing countries with less rigorous safeguards, which need such materials at the lowest possible cost.
Although you oppose continued manufacture or export, neither the other partner working on the case nor the company’s top executives share your view. As they point out, the manufacturer’s major plant is the mainstay of the local economy and closure would cause severe financial difficulties for the entire community. In their view, employees’ risks of cancer are no greater than in many other occupational contexts. Since much of the data on carcinogenic effects are now publicly available, the CEO believes workers should make their own choices about whether to continue employment. Similarly, most of the company’s senior managers are convinced that foreign countries should be free to adopt whatever tradeoffs between environmental and economic values they deem advisable. According to the CEO, attempts to impose American standards are a form of cultural imperialism.
a)Assume that you believe a neutral tribunal would find that continued domestic manufacture of the solvent is unlawful under existing statutory standards. If the company’s in-house counsel disagrees, what are your counseling obligations?
b)Alternatively, suppose that you believe that continued manufacture of the product may be lawful but that it poses an 619unreasonable risk to public and worker safety. You are also convinced that exporting the solvent to countries without adequate environmental regulation is morally indefensible. How should you proceed?
c)Assume that the company’s Board ratifies management’s decision to continue domestic manufacture and export while the matter is under EPA and OSHA review. About 15 percent of your firm’s litigation profits come from representing this client on a variety of matters. Other partners in your firm strongly oppose withdrawal of representation on the EPA and OSHA cases since it would antagonize management without affecting corporate policy. If you continue to find the client’s position objectionable, what is your response?
d)Should you inform your client about what you know concerning the EPA’s enforcement of the discharge limit? What if you believe that such information might persuade plant managers to continue, or to begin discharging, effluents above the 0.50 limit? Would it matter why enforcement was lax in rural areas and whether EPA practices were widely known in the industry? Suppose the .50 discharge limit was set with urban areas in mind, where the mix of other pollutants and the density of population made the harms from contaminated discharge more serious than in rural areas. Alternatively, suppose that the less frequent sanctions in those areas reflected insufficient agency resources and the greater expense involved in testing at rural sites.
e)What if you are unsure about the reasons for the EPA’s enforcement policy? Does competent representation always require providing clients with information about the likelihood and severity of sanctions?68
f)How would you compare the ethical issues presented in the chemical solvent case with those confronting counsel for a major oil company that failed to follow industry standard overseas by not lining its oil pits, where local law did not require that protection? Without lining, waste pits leak into surrounding water tables, and their discharge combines with other spills and byproduct dumping. The result is to contaminate local rivers on which thousands of people depend. The contamination kills fish, animal, and plant life for hundreds of miles, and causes health problems to humans, including higher risks of miscarriages, birth defects, and cancer.69 What were the ethical responsibilities of lawyers for the company who were aware of the dangers?
g)A recent study gave United Kingdom transactional lawyers the following hypothetical situation. Imagine your client is buying a company in a developing country. That company is in compliance with all local environmental law, but those laws are not very effective. After the 620purchase, that company’s operations will have a significant detrimental impact on the environment.70 Most surveyed lawyers said that they would not raise the moral issue with the client. As one explained, “It’s got nothing to do with my profession . . . .”71 Others said that they would raise only reputational harm, on the theory that “in the end you are an advisor, you are not a principal. . . . [O]n some things you just have to let them do it even if they are wrong.”72 How would you respond?
References: Rules 1.2, 1.4, 1.13, 1.16, 2.1.
You work as an in-house lawyer for Uber. The General Counsel has asked for a memo concerning the legal and ethical ramifications of the company’s failure to comply with local laws governing taxi and car services. Uber’s leadership has taken the position that it is not operating such services but merely providing an app that facilitates matching independent contractor drivers and would-be customers. By failing to comply with expensive regulations concerning matters such as insurance, vehicle inspections, and driver background checks, the company has quickly become the most cost-effective provider in many jurisdictions.
The General Counsel also believes that the local laws that Uber violates are outdated, infrequently and inconsistently enforced, and in need of modification to accommodate the company’s business model. By building a large customer base through providing non-compliant services, the company hopes to force changes that will benefit the public as well as itself and similar providers.
One particularly controversial issue involves a strategy that Uber has used to evade law enforcement officials who are posing as customers to gain evidence of the company’s illegal activities. In response to such enforcement efforts, the company has devised a “Greyball” program, which identifies such customers and then scrambles a fake version of the app showing nonexistent “ghost cars” or indicates that no cars are available. Drivers who pick up such a customer receive instructions to immediately terminate the ride.
You have identified the criminal penalties that Uber faces by operating in violation of local regulatory ordinances, as well as potential obstruction of justice charges and violation of the federal Computer Fraud and Abuse Act. You are somewhat worried in-house lawyers could be in violation of Model Rule 1.2(d), which provides that a “lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” How would you assess that risk, 621and what strategies might you advise to avoid potential disciplinary liability?
References: Rules 1.2, 1.4, 1.13, 2.1, 8.4.
1.In 2019, Uber had begun operating in more than seventy countries and was the most valuable private start-up company in the world, with a valuation close to $120 billion dollars.73 It has also been subject to an exceptional range of criminal investigations and prosecutions involving not only its business model and evasion of law enforcement, but also its workplace culture. After a series of allegations involving gender discrimination and harassment, its founder and CEO, Travis Kalanick, was forced to resign.74
Many commentators believe that the company’s defiance of local laws to establish its business model encouraged a “fundamental illegality” that led to other violations less easily justified.75 The Greyball program may be an example. It was originally designed to protect drivers in countries where they faced attacks by local taxi workers.76 It then became a tool to evade domestic law enforcement. Writing in the Harvard Business Review, Benjamin Edelman argues:
[H]aving grown through intentional illegality, Uber can’t easily pivot toward following the rules. . . . Uber’s lawyers were complicit in building a culture of illegality. . . . [Its] legal team, led by [its] Chief Legal Officer . . . approved its Greyball software. . . . Having built a corporate culture that celebrates breaking the law, it is surely no accident that Uber then faced scandal after scandal. How is an Uber manager to know which laws should be followed and which ignored? . . . It is tempting to discard [legal] requirements when a company brings radically improved services, as many feel Uber did. But in declining to enforce clear-cut rules like commercial vehicle licensing, we reward lawbreaking and all its unsavory consequences. Uber’s well-publicized shortcomings show all too clearly why we ought not do so.77
Do you agree? If so, what follows for legal counsel? Should they be subject to discipline for violations of Rule 1.2? What is their best defense against such charges?
2.Charles Yablon situates the Uber issue in the broader context of what he calls counseling “disruptive businesses,” namely those that violate the law 622in the hopes of ultimately changing it.78 Other examples that he discusses include Airbnb and marijuana producers and sellers. He advocates changes to Rule 1.2(d) that would allow lawyers to “advise or assist clients with respect to conduct that may appear as possibly criminal, if objective evidence creates a reasonable belief that such conduct is likely to be permitted in the foreseeable future.” This requirement could be satisfied by lawyers receiving a “determination that such proposed conduct is not harmful or otherwise immoral from an independent committee of the client’s board.” Would you support such a change to Rule 1.2(d)? Is an independent committee likely to be truly “objective?” Can you identify a preferable approach for “disruptive businesses”? Is this a context where Preet Bharara’s warnings about walking in a “culture of minimalism” are relevant? If so, what follows?
1Preet Bharara, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law 195 (2019).
2See Paul R. Tremblay et al., Symposium: Client Counseling and Moral Responsibility, 30 Pepp. L. Rev. 591 (2003).
3David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (1991); David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach (1977); see also Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating: Skills for Effective Representation (1990).
4Binder & Price, supra note 3, at 288; Bastress & Harbaugh, supra note 3, at 57. For an overview, see Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-Centered Representation, 12 Clinical L. Rev. 369 (2006).
5Immanuel Kant, Foundations of the Metaphysics of Morals (1785).
6See generally Jerome B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (1998).
71 Philip C. Jessup, Elihu Root 134 (1964).
8David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 Colum. L. Rev. 1004, 1035–43 (1990).
9Id.; see also Deborah L. Rhode, In the Interests of Justice 66–67 (2000); Deborah L. Rhode, Moral Counseling, 75 Fordham L. Rev. 1317, 1330 (2006).
10See Rhode, Moral Counseling, supra note 9, at 56–57; Deborah L. Rhode & Paul Paton, Lawyers, Ethics, and Enron, 8 Stan. J.L. Bus. & Fin. 9 (2002); Lincoln Savs. and Loan Ass’n v. Wall, 743 F. Supp. 901 (D.D.C. 1990).
11Rhode, Moral Counseling, supra note 9, at 65–66; Robert W. Gordon, Why Lawyers Can’t Just Be Hired Guns, in Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation 42 (Deborah L. Rhode ed., 2000).
12Barry Schwartz & Kenneth Sharpe, Practical Wisdom: The Right Way to Do the Right Thing 36 (2010).
13See Rhode, Moral Counseling, supra note 9, at 1321–24; Deborah L. Rhode, Cheating: Ethics in Everyday Life 42–43 (2018); see also Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, 74 Fordham L. Rev. 983 (2005); Donald C. Langevoort, The Organizational Psychology of Hyper-Competition: Corporate Irresponsibility and the Lessons of Enron, 70 Geo. Wash. L. Rev. 968 (2002); Richard W. Painter, Irrationality and Cognitive Bias at a Closing in Arthur Solmssen’s The Comfort Letter, 69 Fordham L. Rev. 1111 (2000).
14Donald C. Langevoort, Taking Myths Seriously: An Essay for Lawyers, 74 Chi.-Kent L. Rev. 1569 (2000); Painter, supra note 13, at 1132; Mark Sargeant, Lawyers in the Moral Maze, 49 Vill. L. Rev. 867, 871–72 (2004).
15Susan T. Fisk & Shelley E. Taylor, Social Cognition 149–51 (2d ed. 1991); Donald C. Langevoort, The Epistemology of Corporate-Securities Lawyering: Beliefs, Biases and Organizational Behavior, 63 Brooklyn L. Rev. 629, 641–42 (1997); Langevoort, Taking Myths Seriously, supra note 14, at 1573; Painter, supra note 13, at 1131.
16Rhode, supra note 13, at 42–45; Langevoort, Epistemology, supra note 15, at 637, 640, 651–52.
17See Rule 1.13 (discussed in Chapter 6); William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 Fordham L. Rev. 1453, 1464 (2006).
18William H. Simon, Duties to Organizational Clients, 29 Geo. J. Legal Ethics 489, 497 (2016).
19 Thomas L. Shaffer & Robert F. Cochran, Lawyers, Clients, and Moral Responsibility 51 (1994).
20Id.; see also Kruse, supra note 4, at 432–33 (discussing a “client-empowering” view of counseling that aims to connect clients to their deepest values, or higher order desires, which may be obscured by more immediate pressures).
21Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (2001); James K. Lawrence, Collaborative Lawyering: A New Development in Conflict Resolution, 17 Ohio St. J. Disp. Resol. 431 (2002); see also Cincinnati Acad. of Collaborative Prof’ls, http://www.collaborativelaw.com (last visited Feb. 2, 2020) (offering to assist clients through a process involving “[c]ollaborative [d]issolution”).
22Patti Waldmeir, Inside Track—A Failure to Squeal, Fin. Times, Jan. 24, 2002 (quoting Vinson & Elkins memorandum). For discussion of the misleading nature of Enron’s conduct, see William C. Powers, Report of Investigation by the Special Investigative Committee of the Board of Directors of Enron Corp. (2002) and sources cited in Rhode & Paton, supra note 10.
23Among the theorists commonly included in this school are David Luban, Deborah Rhode, and William Simon. See David Luban, Lawyers and Justice: An Ethical Study 169–74 (1988); Rhode, In the Interests of Justice, supra note 9; William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (1998).
24William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones’s Case, in Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation 165, 167 (Deborah L. Rhode ed., 2000).
25Id. at 167–70.
26Schwartz & Sharpe, supra note 12, at 34, 65.
27Jesse Eisinger & Paul Kiel, Taxing the Rich Is Harder Than It Sounds, N.Y. Times, May 5, 2019: Rhode, Cheating, supra note 13, at 65.
28Eisinger & Kiel, supra note 27.
29Tax Gap for Tax Year 2006, IRS, http://www.irs.gov/pub/newsroom/overview_tax_gap_2006.pdf. For even higher estimates, see Edgar L. Feige & Richard Cebula, America’s Underground Economy: Measuring the Size, Growth and Determinants of Income Tax Evasion in the U.S. (2011).
30Donald L. Barlett & James B. Steele, The Great American Tax Dodge 161 (2000).
31Rhode, Cheating, supra note 13, at 64.
32Id. at 67 (discussing polls).
33Stephen Erlander et al., Airing of Hidden Wealth Stirs Inquiries and Rage, N.Y. Times, Apr. 6, 2016.
34For a study of lawyer involvement in dubious tax shelters, see Tanina Rostain & Milton C. Regan, Confidence Games: Lawyers, Accountants, and the Tax Shelter Industry (2016).
35The preparer penalty does not apply if it is shown there was reasonable cause for the understatement and the preparer acted in good faith. 26 U.S.C. § 6694(a).
36Id. § 6694(b).
3731 C.F.R. § 10.51.
38Id. § 10.34.
3926 U.S.C. § 6694(a)(2)(A).
40Id. § 6694(a)(2)(B).
4126 C.F.R. § 1.6694–2(b).
42See Frederic G. Corneel, Ethical Guidelines in Tax Practice, 28 Tax L. Rev. 1 (1972).
43Frederic G. Corneel, Guidelines for Tax Practice Second, 43 Tax L. Rev. 297, 304 (1990).
44Tanina Rostain, Ethics Lost, 71 S. Cal. L. Rev. 1273, 1356–57 (1998).
45This example comes courtesy of the late Professor Martin Ginsburg.
46Nick Penzentadler & David McKay Wilson, More Than 100 Lawsuits, Disputes Over Taxes Tied to Trump and His Companies, USA Today, May 19, 2016.
47Id.; Jon Swaine, How Trump’s $50M Golf Club Became $1.4M When It Came Time to Pay Tax, The Guardian, March 12, 2016.
48See Rhode, Cheating, supra note 13, at 69.
49W. Bradley Wendel, Professionalism as Interpretation, 99 Nw. U. L. Rev. 1167, 1215–17 (2005).
50Business Planning and Professional Responsibility, 8 Prac. Law. 17, 29–30 (1962) (comments of Ross L. Malone).
51Id. at 30.
52Id. at 32 (comments of David R. Herwitz).
53Richard A. Posner, Overcoming Law 54 (1995).
54 Id.
55See Laura MacFarquhar, So You Want a Divorce, New Yorker, April 23 & 30, 2001, at 88.
56Richard E. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defending Unethical Behavior in Divorce Litigation, 20 Fam. L.Q. 413, 415 (1986).
57Austin Sarat, Lawyers and Clients: Putting Professional Service on the Agenda of Legal Education, 41 J. Legal Educ. 43, 47 (1991).
58Richard J. Maiman et al., The Future of Legal Professionalism in Practice, 2 Legal Ethics 71, 78 (1999).
59For landmark research, see Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 248 (1992).
60This problem is drawn from materials presented by David Chambers at a workshop on Teaching Ethics in Family Law at the Association of American Law Schools’ annual meeting.
61Patty Waldmeir, Inside Track: Don’t Blame the Lawyers for Enron, Fin. Times, Feb. 21, 2002, at 14.
62Rhode & Paton, supra note 10; Dan Ackman, Enron’s Lawyers: Eyes Wide Shut, Forbes.com, Jan. 28, 2002.
63Geoffrey Miller, From Club to Market: The Evolving Role of Business Lawyers, 74 Fordham L. Rev. 1105, 1124 (2006).
64A report prepared by Enron’s bankruptcy examiner was equivocal, detailing possible grounds of liability for Enron’s lawyers but also possible defenses of fact and law. In re Enron, App. C, Case No. 01–16034 (AJG). The firm was subsequently dismissed from a shareholder suit against Enron participants. Newby v. Enron, 2007 WL 209923 (S.D. Tex. 2007).
65Geoffrey C. Hazard, Jr., Ethics in the Practice of Law 136, 143–45 (1978).
66J. Scott Armstrong, Social Irresponsibility in Management, 5 J. Bus. Res. 185 (1977).
67The discharge limit issues are modeled on a hypothetical problem discussed in Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545 (1995).
68See id. at 1570–75.
69Damira Khatam, Chevron and Ecuador Proceedings: A Primer on Transnational Litigation Strategies, 53 Stan. J. Int’l L. 249, 252–53 (2017).
70Stephen Vaughan & Emma Oakley, “Gorilla Exceptions” and the Ethically Apathetic Corporate Lawyer, 19 Legal Ethics 50, 66–67 (2016).
71Id. at 62.
72Id. at 63.
73Charles M. Yablon, The Lawyer as Accomplice: Cannabis, Uber, Airbnb, and the Ethics of Advising “Disruptive” Businesses, 104 Minn. L. Rev. 309 (2019); Mike Isaac, How Uber Deceives the Authorities World Wide, N.Y. Times, Mar. 3, 2017.
74Mike Isaac, Uber Founder Travis Kalanick Resigns as CEO, N.Y. Times, June 21, 2017; Mike Isaac, Inside Uber’s Aggressive Unrestrained Workplace Culture, N.Y Times, Feb. 22, 2017.
75Benjamin Edelman, Uber Can’t Be Fixed—It’s Time for Regulators to Shut it Down, Harv. Bus. Rev., June 21, 2017; see also Yablon, supra note 73.
76Isaac, supra note 73.
77Edelman, supra note 75.
78Yablon, supra note 73.
Ethics in Organizational Settings
Most lawyers today work in organizational settings and most lawyers’ clients are also organizations. This structure of practice complicates ethical decisionmaking because lawyers are subject to institutional pressures, incentives, and customs that may sometimes conflict with their personal values or the Rules that govern attorney conduct. The materials that follow focus on two different types of ethical challenges in organizational settings.
The first constellation of ethical challenges arises when a lawyer represents an organization as a client. As we saw in the last chapter, organizational representation presents complex questions about to whom the lawyer is ultimately accountable and what the lawyer should do when she uncovers unethical or even illegal conduct by actors within the organization. We treat this issue in three parts.
Part A examines the lawyer’s general duties when she is representing any organization (private or public), focusing on obligations to report misconduct to higher levels of authority within an organizational structure and what, if any, opportunities exist to report misconduct to outside parties. This discussion highlights the difficult judgments lawyers must make in determining what constitutes wrongful conduct, identifying who the appropriate decisionmakers are to address it, and evaluating what remedial steps are in the best interest of the organizational client. In these contexts, lawyers may differ with client managers over how to define misconduct and how to ultimately address it. How much deference should an attorney give to the ethical and legal judgments made by the client’s management team? When can, should, or must an attorney blow the whistle on her own client to prevent harm? As these questions suggest, lawyers for organizations may face tough ethical choices, particularly on those occasions when protecting client confidences may implicate them in client wrongdoing. Part B explores specific ethical issues that arise when lawyers represent private organizational clients, which include for-profit and nonprofit corporate entities. As we will see, depending on the type of client and the regulatory context, lawyers representing private companies are subject special to requirements to identify and potentially report corporate misconduct that complement, and in some ways go beyond, what the professional rules require. This Part also highlights distinctions between the roles of outside and in-house counsel, the latter of whom face unique ethical 624pressures by virtue of being employed by their client. Part C then turns to look at the distinctive challenges faced by government lawyers who are entrusted with representing public agencies and the public at large.
The second set of ethical challenges arises when a lawyer works within an organization, such as a law firm, in which there are many lawyers with different levels of seniority and expertise. In such a context, what are the senior lawyers’ obligations to supervise and monitor junior lawyers’ work? And how much should a junior lawyer defer to judgments made by his or her supervisor? We explore these questions in Part D.
A.General Principles of Representing an Organization
On its face, the rule governing organizational representation is elegantly simple. Rule 1.13(a) makes clear that when lawyers represent an organizational client, they represent the organization itself “acting through its duly authorized constituents.” This means that a lawyer for any type of group—whether it be a Fortune 500 company, government agency, university, small business, or nonprofit community organization—ultimately is charged with serving that group’s best interests as defined and conveyed by those in charge.
Yet the simplicity of this rule is deceptive on two levels. First, it is not always clear who in an organization qualifies as its “duly authorized constituents” from whom the lawyer is supposed to take her direction. For instance, lawyers for a corporation often take their cues from high-level managers, who may have delegated authority to act on the company’s behalf. But those managers may disagree among themselves about the appropriate course of action, may hold views about the representation that differ from those of the board members, to whom the managers have to answer, or may misunderstand what the best interest of the corporation actually are.1 In the public sector, the organizational hierarchy may be even less clear, such that lawyers for government agencies lack strong guidance about how to resolve ambiguous mandates.2 Lawyers for organizational clients must take care in these complex relational settings to ensure that their instructions have been vetted by, and represent the definitive view of, the client’s ultimate decisionmakers and that the lawyer’s advice is being properly conveyed to those in charge. Even when the lawyer takes these steps, there are difficult questions about how much the lawyer should simply defer to client representatives or probe more deeply into the nature of the organization’s decisionmaking process.3
625The second complexity arises when a lawyer for an organizational client finds out that someone inside the organization is involved in misconduct that might harm or be attributed to the client itself. In complex organizations, it is not uncommon to discover that someone, somewhere has engaged in action that is wrongful and that could endanger either the organization itself or third parties. Again, these types of situations are often not clear-cut. Lawyers’ assessments of legal risk may differ from those of their clients’ representatives. As we saw in Problem 4 in Chapter 10, a client may wish to proceed with a course of conduct that is technically illegal but unlikely to be detected and punished. Even when violations are serious and unambiguous, lawyers’ duty of confidentiality may restrict the degree to which they may report the misconduct outside the client entity. And, though withdrawal under Rule 1.16 is often an option, as we discuss below, particularly for lawyers who work as in-house counsel (and even for lawyers at outside firms) the negative professional consequences of withdrawal may be so grave that it is an option of last resort. In these situations, what must and what may a lawyer do?
Rule 1.13 provides two mechanisms for reporting internal organizational legal violations. Rule 1.13(b) provides for mandatory (though conditional) “reporting up” the organizational chain of command. Rule 1.13(c) provides for permissive “reporting out” after the process set forth in (b) has been followed and additional requirements have been met. Specifically, Rule 1.13(b) states as follows:
If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
The Rule mandates that a lawyer who uncovers illegal conduct that threatens injury to the client must, if warranted, report the matter all the way up the ladder to the “highest authority that can act on behalf of the organization as determined by applicable law.” However, a number 626of conditions must be satisfied before this duty is triggered. First, a lawyer must have actual knowledge of a legal violation. Second, that violation must be “likely to result in substantial injury to the organization.” Third, the lawyer must conclude that reporting up is in the organization’s “best interest.” The rules offer no guidance on how a lawyer is to determine the nature of a “substantial injury” or what constitutes the client’s “best interest” in this context.
Then, beyond this mandatory reporting obligation, Rule 1.13(c) permits a lawyer to report illegal activity to persons or entities outside of the organization—but only if certain requirements are satisfied. It states that if:
(1)despite the lawyer’s efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2)the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
Under Rule 1.13(c), then, a lawyer must: (1) have complied with the reporting up requirements of section (b); (2) determine that the action at issue is “clearly a violation of law” (a higher standard than in (b)); and (3) reasonably believe that “the violation is reasonably certain to result in substantial injury to the organization.” Even then, disclosure is permitted “only if and to the extent that the lawyer reasonably believes necessary to prevent substantial injury to the organization.” In other words, any disclosure under Rule 1.13(c) must be narrowly tailored solely to prevent organizational injury.
Finally, section (d) prohibits any reporting out otherwise permitted by (c) “relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.” Accordingly, if a lawyer is hired to conduct an internal investigation into corporate wrongdoing, any information about illegal activity gained through that investigation may not be disclosed under Rule 1.13(c). The theory behind this exception is that permitting disclosure would undermine a company’s incentive to investigate and take steps to rectify wrongdoing and comply with law. Critics of this exception suggest that it allows cynical organizations to label representations as “investigations” merely to prevent damaging information from being disclosed.
627Note that Rule 1.13 does not affect a lawyer’s ability to disclose confidential information under an exception to Rule 1.6. Recall that the Rule 1.6 exceptions are designed to prevent third parties from harm. By contrast, the Rule 1.13 disclosure regime authorizes “loyal” disclosures in order to prevent injury to the client.
The ABA approved the current Rule 1.13 framework in 2003 after a contentious debate. The controversy followed outrage over the failure of lawyers to more aggressively contest illegal conduct at Enron and other companies. Prior to those 2003 amendments (which created the client fraud exceptions to Rule 1.6 examined in Chapter 6), a lawyer for an organizational client was only required to “proceed as reasonably necessary in the best interests of” the client—a vague standard that offered little guidance. The new Model Rule standards were prompted by pressure outside the ABA—and, in fact, the ABA only voted to create Rule 1.13’s reporting framework after the Sarbanes-Oxley Act of 2002 was enacted, and only after SEC rules implementing the Sarbanes-Oxley Act imposed similar duties on lawyers for publicly listed corporations. We examine those rules below.
The case study of the Ford Pinto that follows raises a serious but not uncommon problem: An automobile manufacturer markets a car with knowledge of undisclosed safety risks. More recent examples include General Motors’ sale of cars with faulty ignition switches that would suddenly turn the car off and disable occupants’ airbags and Volkswagen’s marketing of purportedly low-emissions vehicles that were, in fact, secretly equipped with “defeat devices” to fool emissions testers. These cases raise questions of what the lawyers knew, when they knew it, and whether they actively engaged in fraudulent conduct, sat quietly in the face of serious wrongdoing, or alternatively, properly complied with their internal reporting obligations. They also raise the question of whether lawyers, if they did know of illegal conduct, should have taken steps to reveal it publicly. The Ford Pinto case is a dramatic example of what is at stake in these situations.
David Luban, Lawyers and Justice: An Ethical Study
206–13 (1988).
The shockers came on three successive days, October 13, 14 and 15, 1979, in three successive front-page Chicago Tribune headlines:
OCTOBER 13 FORD IGNORED PINTO FIRE PERIL, SECRET MEMOS SHOW
OCTOBER 14 HOW FORD PUT A PRICE TAG ON AUTOS’ SAFETY
628OCTOBER 15 U.S. OFFICIAL SEES COVER-UP IN FORD SAFETY TEST POLICY
Of course, everyone knew about the celebrated exploding Pinto long before that time. In February 1978, a California jury had awarded $125 million—later reduced to $6.6 million by a judge—to a teenager who had suffered horrendous burns in a Pinto accident. By the summer of 1978, the macabre gag line “Shut up or I’ll back my Pinto into you” was circulating. And the Tribune’s research was initiated because a grand jury in Indiana had indicted Ford for reckless homicide in the burning deaths of three teenage women whose 1973 Pinto had exploded after being struck from behind by a van on August 10, 1978.
The secret internal Ford memos revealed in the first two Tribune articles made it all worse. They seemed to show a level of foreknowledge and coldblooded calculatedness on Ford’s part that appalled many readers.
The first day’s memos showed that Ford engineers knew that Pinto gas tanks would be pierced by bolts when struck from behind at speeds as low as 21 m.p.h. This would allow gasoline to leak out, so that any spark, caused, for example, by metal scraping over pavement, would explode the fuel supply. Other memos discussed several modifications in the Pinto design that would make it safer. These were rejected on the grounds that they cost too much money (various figures were cited, ranging from $5.08 to $11 per car), and because some would decrease trunk space.
According to the first Tribune article, a Ford memo of November 10, 1970 commented that government-proposed fuel tank safety standards “are too strict and come too soon. Ford executives list lesser standards that the Department of Transportation ‘can be expected to buy’ as alternatives.” A “confidential” memo dated April 22, 1971 recommended that one of the safety devices not be installed until 1976, to save Ford $20.9 million. Another “confidential” memo of October 26, 1971 stated that no additional “fuel system integrity” changes would be made until “required by law.” As a result of lobbying by the auto industry, the more stringent legal requirements did not go into effect until 1977; the 1977 Pinto was designed to meet the new requirements. Ford, faced with a government investigation, voluntarily recalled 1.5 million 1971–76 Pintos and Bobcats; as it happened, however, the recall notice was not sent out until twelve days after the Indiana accident.
These memos, in short, indicated that Ford engineers and executives were aware of Pinto’s design problem, and that instead of repairing it, they acted deliberately to avoid regulatory and financial consequences to the company. . . . [Another document contained a cost/benefit analysis in which, according to media accounts, Ford concluded that “[s]aving 180 people from burning to death and another 180 from suffering serious burns in car fires each year would not be worth the cost of adding $11 per car in safety improvements.”] The document was prepared by Ford as an 629argument to the federal government against a higher safety standard. According to a Ford spokesman, “who uttered a profanity when a Tribune reporter mentioned the study to him,” the government itself had established the dollar value assigned to death and injury by the study. The government, however, claimed that these numbers had been prepared for an entirely different purpose, a federal study of the loss to the national economy brought about by traffic accident injuries. . . .
Ford was acquitted of reckless homicide in the Indiana trial. The defense was able to prevent 280 of the 300 Ford documents from being introduced as evidence. It argued that after the recall was initiated, federal regulations actually prevented Ford from notifying Pinto owners of the dangerous gas tank, and thus Ford was not legally reckless. But the key to the defense lay in the facts of the Indiana case. The young women’s car was struck by a van moving fifty m.p.h., enough to rupture the fuel tank on any comparable car. The prosecution argued that the Pinto was moving between fifteen and thirty-five m.p.h. when struck (so that the relative speed of the crash was between fifteen and thirty-five m.p.h.). The defense, interviewing possible witnesses as far away as Costa Rica, turned up two hospital employees who reported a deathbed conversation with one of the victims, who said she had stopped the car. Prosecutor Michael Cosentino’s grisly attempt to impugn this testimony—by arguing that since the victim’s lips were totally burned off, she could not possibly have articulated the word “stopped”—failed, and Ford was acquitted of murder.
According to the Tribune, Ford engineers had known since 1968 that fuel tanks in the position of the Pinto’s were liable to rupture “at very low speed,” and discussions of how to deal with the problem in Pintos had been going on since at least 1970. Yet until the lawsuits began, the public had no inkling of the matter. And the consequences were severe: the company itself could estimate how many people would be immolated in their Pintos. During 1976 and 1977 alone “thirteen Pintos—more than double the number that might be expected in proportion to their numbers—were involved in fiery rear-end crashes resulting in deaths” while the VW Rabbit and Toyota Corolla suffered none. Some might say that it is a mistake to dwell on the particulars: it makes our reactions too emotional. On the contrary, I think that in problems such as these we cannot afford to forget the three teenagers who perished in a one-thousand-degree fire. And, if the Tribune stories are accurate, Ford knew precisely what it was doing. . . .
[In particular,] [a]ccording to former Ford executive Harley Copp, the lawyers [in Ford’s legal department] “definitely knew” what was in those documents. . . .
[A]ssuming that the facts of the case are as the newspapers stated them, did Ford do anything immoral?
This question sounds absurd. If allowing innocent people to be immolated for no other reason than cold, cold cash isn’t immoral, what 630is? Only one thing, we might answer: doing a study on it first and then covering up the whole horrible process.
Despite this understandable reaction, there is another way to look at the matter. What was it that Ford did? It traded off cost for safety. But that is what car manufacturers must always do. Safety costs money, and people may not be willing to pay the price. Hence, the cheaper, in both senses, car. ([Ford executive Lee] Iacocca introduced the Pinto to break into the under-two-thousand-pounds-and-two-thousand-dollars market.) Government regulations set minimum safety standards, but after these were met, the marketplace sets the level of safety. . . .
Pinto’s gastank was punctured at twenty-one m.p.h. collisions. For $6.65 extra, it would have withstood thirty m.p.h. But it still would have gone at forty. For more money, it would have stood up to fifty-five (Pinto would then have resembled an armored half-track). But no car is totally safe, and thus they will all generate their grotesque cost-benefit analyses. Indeed, a standard test of negligent design in tort law is simply that the risk of the design outweighs the benefits . . . .
This brings us to the second part of the response. To a sophisticated reader, Ford’s cost-benefit study is nothing to get excited about. First of all, that number of deaths is simply an actuarial statistic and does not by any means show a callous attitude toward human life, any more than does a similar study by your insurance company or by the manufacturer of the safest car money can buy. Every car has a small but calculable probability of burning you to death. Multiply a tiny probability by millions of cars and you will get a body count like Ford’s. One hundred and eighty deaths out of 12.5 million vehicles translates into the statistic that the gastank Ford was using increased your chance of death by one in seventy thousand over the safer alternative. That doesn’t sound as bad as actually writing down the number of deaths; nevertheless, mathematically the numbers are equivalent. . . .
Nor is that two hundred thousand dollars per death figure beyond the pale of humanity. Personal injury lawyers use formulas for computing the value of a wrongful death: it’s just one of the things that must be done to compensate, as far as possible, for irreversible losses. . . .
So, at any rate, goes the argument. It says that Ford was not doing anything improper or out of the ordinary: it just got caught with a lot of embarrassing memos that made for good copy but really signified nothing.
1.One important question raised by the Pinto case is how the Ford lawyers should have treated the internal cost-benefit memos. If we assume the lawyers knew about the memos, and we seek to evaluate their conduct under the current version of Rule 1.13, we confront two issues. The first is whether the company’s decision to leave the gastank in the rear of the vehicle would 631have constituted a “violation of law that reasonably might be imputed to” Ford that would have thus triggered an obligation to report up. Recall that the Pinto met then-current safety standards. Does the possibility of tort or even criminal liability for injuries caused by the exploding gastank count as a known legal violation under Rule 1.13(b)? The second issue is, if Ford’s decision about the gastank constituted a legal violation, was it likely to result in “substantial injury” to the company in light of Ford’s own cost-benefit analysis? Would lawyers have been able to defer to that analysis in deciding not to report their concerns to higher ups—to say that there was no likelihood of substantial injury to the company since it had already concluded that the benefits of the tank placement outweighed the costs?
2.Another question raised by the Pinto case is: Did the company’s cost-benefit analysis rely on the right estimates? The “right” estimate of the value of human life is notoriously hard to calculate. Global variation in estimates of the value of life range from $70,000 to $16.3 million.4 In the United States, federal agencies operate with figures generally ranging from roughly $6 to $9 million—but tort awards for wrongful death are typically a fraction of that, and even agency estimates tend to shift with the political winds.5 At the time of the Ford Pinto collision described in the text, the National Highway Traffic Safety Administration placed the value of human life at roughly $200,000.6 Did that make $200,000 the “right” estimate?
3.According to tort expert Gary Schwartz’s research, the Pinto’s overall safety record during the relevant period was quite “respectable,” in part because only 1 percent of all traffic crashes resulted in fires and only 4 percent of accident fatalities occurred in fire crashes. However, because of its gastank placement, the Pinto did perform comparatively poorly in rear-end collisions.7 Does that alter your analysis?
4.Consider Gary Schwartz’s claim that cases like the Pinto reflect a “two cultures problem,” referring to the way economists think about policy issues and the way laypeople think about the value of life. On the one hand, we expect both governmental and corporate decisionmakers to consider cost-benefit tradeoffs when setting safety standards or evaluating design alternatives. Indeed, most states’ product liability laws require such an evaluation. On the other hand, when we are dealing not with statistics and probabilities but with identifiable victims, the prospect of trading cash for lives offends deeply felt moral values.
Many have debated how the tort system should respond to this ambivalence. However one resolves that question in general, and however 632one assesses Ford’s conduct in particular, the point that bears emphasis here is that lawyers counseling corporations need to consider the practical, informational, and ethical limitations of cost-benefit analysis. Such considerations are crucial for attorneys, not only in their own comfort-level with a decision, but in predicting their clients’ potential legal liabilities and the public relations consequences of various decisions. Given such considerations, was the conduct of Ford Motor Company in the Pinto case wrong?
5.Although it is commonly assumed that Ford’s decisionmakers relied on the cost-benefit memo described above, a later study of the Pinto case concludes that the engineers responsible for the fuel tank design and the initial refusal to recall decision were unaware of the memo.8 Does that matter?
6.Assume that Ford’s lawyers knew of the memos described in the Luban excerpt. Assume as well that the memos established knowledge of a legal violation “that reasonably might be imputed” to Ford that was “likely to result in substantial injury” to the corporation. Would it have been in the company’s best interest for the lawyers to report up? Suppose that Ford’s lawyers tried but failed to obtain internal review of management’s safety decisions. Would the lawyers have been permitted to disclose the relevant facts to a government agency or consumer organization? In this regard, was there a clear violation of law “reasonably certain to result in substantial injury to the organization”? Would disclosure have prevented that injury?
7.Recall that, under Rule 1.6(b)(1), a lawyer may reveal information “to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.” Given the numbers in Ford’s cost-benefit analysis—180 anticipated deaths and 180 serious burns out of a total of 12.5 million vehicles—should a lawyer conclude that marketing the Pinto will lead to reasonably certain death or substantial bodily harm? Statistically speaking, there is an overwhelming likelihood that someone will die because of Pinto’s gastank but a minuscule likelihood that any particular individual will be one of the anticipated victims; the chances for a given driver or passenger are less than three-one-thousandths of a percent. Given these odds, does Rule 1.6(b)(1) permit or forbid whistleblowing? According to Comment 6:
[6]Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water 633will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.
Does that Comment offer sufficient guidance?
8.Would Ford’s lawyers have been permitted to disclose confidential information about the Pinto’s design or danger under Rule 1.6(b)(2) or (b)(3)? Recall, these provisions authorize disclosure:
(2)to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3)to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services. . . .
9.As Chapter 6 recounted, earlier drafts of Rule 1.6 would have obligated disclosure to prevent a client from committing an act that would result in death or substantial bodily harm to a third party. Worried that that lawyers would face an undue risk of liability for nondisclosure and that clients would withhold information necessary for effective representation, the ABA House of Delegates chose, instead, to approve a discretionary provision that permits, but does not compel, disclosure.9
Should disclosure of confidential information be mandatory rather than permissive in circumstances posing clear threats to life and safety? Under Nuclear Regulatory Commission mandates, an employee who becomes aware of certain nuclear safety risks must inform governmental officials. Engineering codes of conduct similarly require disclosure of conditions posing a risk to public health or welfare.10
10.Rule 1.13 is unique to the United States. Other countries have no comparable requirements. Indeed, the Code of the Council of Bars and Law Societies of Europe (CCBE) does not even have a provision analogous to Rule 1.13. Japan has a requirement comparable to Rule 1.13(b), which obligates in-house lawyers to report wrongdoing up the chain of the command but does not authorize reporting out if the organization fails to act.11
63411.If you were on a bar commission charged with recommending amendments to the Model Rules, what changes, if any, might you propose for Rule 1.13? What effect do you think a different rule might have on attorney conduct under circumstances described in the Pinto excerpt? In his discussion of the Pinto problem, Luban concludes that if Ford’s lawyers could not convince the company to redesign or recall the car, they should have alerted the public to the danger. Do you agree? Is that practical? Are there persuasive reasons why lawyers should defer to other decisionmakers on cost and safety decisions?
12.A common claim by corporate clients and their lawyers, across a wide array of organizational settings, is that responsibility for protecting public welfare rests—and ought to rest—with government. It is for politically accountable officials, not self-appointed attorney moralists, to make difficult tradeoffs. As long as clients comply with existing regulations, some lawyers claim, their duties are satisfied.
Others point out that a problem with this view is that it fails to acknowledge the limits of regulation. In contexts like the Ford Pinto case, or like the recent General Motors of Volkswagen debacles, industry leaders exercise far more influence over regulatory structures and enforcement than unorganized and uninformed consumers. Inadequate information among regulators may allow distribution of a product without adequate review of risks.12
13.A related issue of decisionmaking authority involves the rights of consumers, workers, or other affected parties to make their own tradeoffs between dollars and risks. Corporate clients and their counsel often claim that it is not their role to impose personal preferences on others about what level of safety to demand; such imposition, they say, is improper and paternalistic.
How plausible is this argument in circumstances such as the Pinto case? How much information about how many features of how many comparable models would consumers need in order to make a truly rational choice? Studies of informed consent in medical contexts indicate that most individuals do not adequately understand or recall disclosures concerning risky or experimental procedures. When faced with hard treatment choices, most surveyed patients do not want decisionmaking control and responsibility.13 When making car purchases, how many prospective buyers are likely to focus on rear-end collision fatalities? Even when the issue was brought to their attention, about half of Pinto purchasers did not respond to Ford’s recall notice and obtain free safety improvements.14 Indeed Dennis 635Gioia, the company’s former recall coordinator, now notes with some chagrin that he not only owned a Pinto at the time of the fires, but also that he sold it to his sister.15
Does it follow that consumers are unconcerned with safety simply because they do not make it central to their final decisions? Might they simply assume that government standards establish adequate protection? And if such standards, in fact, fall short, is there a role for mandatory disclosures that would enable consumers and regulators to make informed choices?
You are the general counsel for Ford Motor Company. One of the company’s most respected engineers seeks your advice. He is concerned that Ford, in its rush to market a model competitive with small foreign cars, has been unwilling to make certain safety improvements involved in relocating the rear fuel tank of the Pinto automobile. Crash tests indicate that the car’s gastank punctures and explodes in rear-end collisions at relatively lowly speeds. However, other engineers doubt that the tests represent real-world conditions or that the safety performance is unacceptable, particularly for a small car. They note that the car complies with all safety requirements of the National Highway Traffic Safety Administration (NHTSA). Moving the tank now would cost between $5 and $11 per vehicle, for a total of around $137 million, and would delay production. The CEO strongly opposes a design change, and there is no reason to believe that the Board of Directors would arrive at a different conclusion unless you raise persuasive objections.
a)How do you proceed? What factors would be relevant to your analysis?
b)Suppose that, in the course of your investigations, you discover a memo prepared for lobbying the NHTSA on safety standards. It valued human life at approximately $200,000 and serious burn injuries at $67,000 each. The memo projected the cost of settling lawsuits from Pinto collisions at about $49 million. Should you use that figure in analyzing the risks to Ford associated with the Pinto rear-end fuel tank design?
c)Assume you do nothing and that the Pinto is marketed with the gastank location unchanged. Soon thereafter, however, reports begin to surface indicating that cars are exploding, even in low-speed collisions. The engineer who approached you initially is in charge of recall decisions, and he holds two meetings with relevant in-house experts. They all oppose recall. If you disagree, how should you proceed?
d)If the company decides not to recall the car, and you strongly disagree, what should you do? What alternatives would you consider? What factors would be relevant to your judgment?
636References: Rules 1.2, 1.6, 1.13, 2.1.
B.Representing Private Organizations
As a matter of formal ethics law, a lawyer’s duties to an organizational client are the same, regardless of whether that lawyer represents a private- or public-sector organization. However, as a practical matter, the nature of an organizational client may affect a lawyer’s professional conduct for several reasons. As we will see, specific types of private companies, such as publicly traded corporations governed by the SEC, may be covered by regulatory regimes that impose specific obligations on the lawyers who represent them. In addition, the organizational structure of private companies, many of which operate through boards of directors or similar authorities, is often quite different than that of public agencies in ways that affect a lawyer’s duty to communicate and report. Lawyers for corporations, particularly those who work in-house, face significant barriers to reporting internal misconduct, since the consequences of whistleblowing may be a lost client or even (for in-house lawyers) a lost job. Overall, the fact that private organizations typically pay lawyers for their services—and often quite well—creates a much different set of pressures on lawyers to do their clients’ bidding. This Part explores some of these issues, beginning with a review of the specific reporting requirements for lawyers working for SEC-listed public companies, and then turning to whistleblower protections and the particular challenges faced by in-house counsel.
As noted earlier, the current version of Rule 1.13 was enacted in response to the SEC’s regulations implementing the Sarbanes-Oxley Act. Congress passed that Act in the wake of high-profile corporate scandals in the early 2000s, including Enron, WorldCom, Global Crossings, and Tyco. It applies to public companies—called “issuers” because they issue securities to investors—which are required to register with the SEC and meet various reporting and disclosure requirements. The professional standards promulgated by the SEC thus govern lawyers for public companies who practice in front of the Commission. The most critical provisions of the regulations implementing the act are discussed below.
Part 205—Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer
§ 205.3 Issuer as client
. . . .
637(b)Duty to report evidence of a material violation. (1) If an attorney, appearing and practicing before the Commission in the representation of an issuer, becomes aware of evidence of a material violation by the issuer or by any officer, director, employee, or agent of the issuer, the attorney shall report such evidence to the issuer’s chief legal officer (or the equivalent thereof) or to both the issuer’s chief legal officer and its chief executive officer (or the equivalents thereof) forthwith. . . .
(2)The chief legal officer (or the equivalent thereof) shall cause such inquiry into the evidence of a material violation as he or she reasonably believes is appropriate to determine whether the material violation described in the report has occurred, is ongoing, or is about to occur. If the chief legal officer (or the equivalent thereof) determines no material violation has occurred, is ongoing, or is about to occur, he or she shall notify the reporting attorney and advise the reporting attorney of the basis for such determination. Unless the chief legal officer (or the equivalent thereof) reasonably believes that no material violation has occurred, is ongoing, or is about to occur, he or she shall take all reasonable steps to cause the issuer to adopt an appropriate response, and shall advise the reporting attorney thereof. In lieu of causing an inquiry under this paragraph (b), a chief legal officer (or the equivalent thereof) may refer a report of evidence of a material violation to a qualified legal compliance committee under paragraph (c)(2) of this section if the issuer has duly established a qualified legal compliance committee prior to the report of evidence of a material violation.
(3)Unless an attorney who has made a report under paragraph (b)(1) of this section reasonably believes that the chief legal officer or the chief executive officer of the issuer (or the equivalent thereof) has provided an appropriate response within a reasonable time, the attorney shall report the evidence of a material violation to:
(i)The audit committee of the issuer’s board of directors;
(ii)Another committee of the issuer’s board of directors consisting solely of directors who are not employed, directly or indirectly, by the issuer and are not, in the case of a registered investment company, “interested persons” . . . ; or
(iii)The issuer’s board of directors. . . .
(9)An attorney who does not reasonably believe that the issuer has made an appropriate response within a reasonable time to the report or reports made pursuant to paragraph (b)(1), (b)(3), or (b)(4) of this section shall explain his or her reasons therefor to the chief legal officer (or the equivalent thereof), the chief executive officer (or the equivalent thereof), and directors to whom the attorney reported the evidence of a material violation . . . .
(10)An attorney formerly employed or retained by an issuer who has reported evidence of a material violation under this part and 638reasonably believes that he or she has been discharged for so doing may notify the issuer’s board of directors or any committee thereof that he or she believes that he or she has been discharged for reporting evidence of a material violation under this section. . . .
(d)Issuer Confidences. . . .
(2)An attorney appearing and practicing before the Commission in the representation of an issuer may reveal to the Commission, without the issuer’s consent, confidential information related to the representation to the extent the attorney reasonably believes necessary:
(i)To prevent the issuer from committing a material violation that is likely to cause substantial injury to the financial interest or property of the issuer or investors;
(ii)To prevent the issuer, in a Commission investigation or administrative proceeding from committing perjury . . . ; suborning perjury . . . ; or committing any act proscribed in 18 U.S.C. § 1001 that is likely to perpetrate a fraud upon the Commission; or
(iii)To rectify the consequences of a material violation by the issuer that caused, or may cause, substantial injury to the financial interest or property of the issuer or investors in the furtherance of which the attorney’s services were used.
§ 205.5 Responsibilities of a subordinate attorney
. . . .
(c)A subordinate attorney complies with § 205.3 if the subordinate attorney reports to his or her supervising attorney under § 205.3(b) evidence of a material violation of which the subordinate attorney has become aware in appearing and practicing before the Commission.
(d)A subordinate attorney may take the steps permitted or required by § 205.3(b) . . . if the subordinate attorney reasonably believes that a supervisory attorney to whom he or she has reported evidence of a material violation under § 205.3(b) has failed to comply with § 205.3.
1.The language of Sarbanes-Oxley raises a number of questions for lawyers who represent public companies. First: Who is governed by § 205? The regulation governs any lawyers who advise clients in the preparation of documents that foreseeably may become part of submissions to the SEC. This includes a wide range of corporate documents.
Second, what is an “appropriate response” by a chief legal officer to an attorney’s report of evidence of misconduct? It is a response that would lead a reasonable attorney to believe that the problem is being addressed in accordance with applicable laws. This includes a determination that the client has a colorable argument that its conduct is legal.
639Third, what standard triggers a lawyer’s reporting obligations? Section 205.2(e) provides:
Evidence of a material violation means credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred, is ongoing, or is about to occur.
Many practitioners and commentators have found this standard confusing, with its convoluted syntax, multiple probabilistic terms (“material,” “credible,” “unreasonable,” “reasonably likely”), and double-negative construction.16 The double-negative “unreasonable not to conclude” standard appears to be higher than a “reasonable lawyer” standard. If the rule required only that a reasonable lawyer would conclude that it is reasonably likely that a material violation had occurred, then the “reporting up” obligation might be triggered even if another reasonable lawyer concluded the opposite. The double-negative construction rules out that possibility; it requires that no reasonable lawyer could avoid the conclusion that a material violation is reasonably likely. “Reasonably likely” means more than “merely possible,” but something short of “more likely than not.”
Apparently, this convoluted standard emerged as a compromise between two positions. Initially, the SEC wanted an objective standard triggering lawyers’ reporting obligations; the SEC’s preferred standard would have defined “evidence of a material violation” as “evidence that would cause a lawyer to reasonably believe that a violation is occurring.” Yet, nearly all practicing lawyers who commented on the proposed standard maintained that it was too demanding. They preferred a subjective standard that would have required reporting only if the attorney knew that a violation was occurring. How different is the compromise standard from a subjective knowledge requirement?
2.Section 205.3(b) provides the basic “reporting up the ladder” framework: An attorney who becomes aware of evidence of a material violation of securities law must report it to the chief legal officer of the issuing company, who must, in turn, investigate, take steps to ensure that the issuer responds appropriately, and report back to the attorney who initially made the report. If that attorney does not receive a satisfactory response, he or she must go up the ladder once again and report the evidence to members of the company’s board of directors. Alternatively, the issuing company can set up a “Qualified Legal Compliance Committee” (QLCC) consisting of independent members of the board of directors. (In the excerpt reproduced above, we have omitted regulations concerning QLCCs.) Both the attorney and the chief legal officer can discharge their reporting requirements by reporting to the QLCC, provided that the QLCC has been established prior to the report (i.e., a QLCC cannot be set up to deal with allegations of a violation after they surface). Section 205.3(b)(4) provides that if an attorney “believes that it would be futile to report evidence of a material violation to 640the issuer’s chief legal officer and chief executive officer (or the equivalents thereof),” the attorney may bring the evidence of a material violation directly to the board of directors.
3.The most controversial aspect of the regulation is § 205.3(d)(2). It permits lawyers representing issuers before the SEC to reveal client confidences in order to prevent or rectify fraud in which the lawyer’s services have been used.
Refusing to acquiesce to this provision, the Washington State Bar issued a 2003 ethics opinion asserting that it would continue to discipline lawyers who reveal client confidences, even if the revelation was authorized by the Sarbanes-Oxley Act. In August 2003, the Corporations Committee of the Business Law Section of the California State Bar sent a letter to the SEC general counsel agreeing with the Washington Bar and arguing that the SEC lacks authority to preempt state ethics rules. The SEC’s response was that the agency had such authority, and one of its Commissioners characterized the Washington bar ethics opinion as an “essentially lawless act.”17
By contrast, the North Carolina Bar concluded that, under prevailing Supreme Court precedent, federal regulation preempts conflicting law if the agency clearly intended to preempt and its action is within the scope of its delegated authority. Thus, the North Carolina Bar took the position that, unless and until a court ruled that the SEC had exceeded its authority, its regulations should preempt contrary state bar standards.18
4.How different is Sarbanes-Oxley from Rule 1.13? If a lawyer for a publicly traded company comes across evidence of a material violation of the Securities Exchange Act, what are her obligations under Rule 1.13? Would it be possible for that lawyer to comply with both § 205 and Rule 1.13? What steps should she take to do so? Are Rule 1.13(c)’s standards for “reporting out” consistent with § 205(d)(2)’s standard for revealing confidences to the SEC to prevent the commission of a material violation after internal efforts have been exhausted?
5.What if the reporting attorney is fired? Under § 205.3(b)(10), the attorney may report the discharge to the board of directors. Does this provision rule out a cause of action for retaliatory discharge? Should it?
6.The regulations state that attorneys violating the rule will be subject to civil sanctions and penalties by the SEC, that they are immunized against penalties under inconsistent state standards by good faith efforts to comply, that the SEC will not seek criminal penalties, and that the regulations create no private right of action. The net result is to create a “safe harbor” for attorneys from civil lawsuits based on their companies’ violation of the regulations. Does that categorical exemption serve the public interest? Are regulatory violations likely to be relevant in malpractice litigation despite § 205’s disclaimer?
6417.The SEC considered but rejected a “noisy withdrawal” rule. Such a rule would have compelled lawyers to withdraw, disaffirm relevant documents, and notify the SEC and successor counsel that she had withdrawn for professional reasons, if she did not get an appropriate response in a reasonable time. The proposal met with considerable support from academic experts but overwhelming opposition from the organized bar.19 What is your view of its merits?
8.The Sarbanes-Oxley regulations have not been well received by the practicing bar. The “up the ladder” reporting structure creates the unpleasant possibility that lawyers may be required to go over superiors’ heads—those who hired them, evaluate them, pay them, and often work side by side with them—and inform the board of directors that those same individuals may be engaged in illegal conduct. An additional complication arises for in-house counsel in multinational corporations operating in countries where whistleblowing is not permitted.20 As one lawyer puts it:
An attorney has many roles in society—client representative, officer of the legal system, and public citizen responsible for justice, to name a few. Now, thanks to a group of forty law professors, a former plaintiffs’ attorney, and a Congress faced with a disillusioned public in an important election year, an attorney representing clients before the Securities and Exchange Commission also has another title: corporate snitch.21
Do you agree? Why or why not?
9.Rule 102(e) of the SEC’s Rules of Practice permits the Commission to “censure a person or deny, temporarily or permanently, the privilege of appearing or practicing before it in any way” if the person is found to “have engaged in unethical or improper professional conduct” (which includes violating § 205.3) or “to have willfully violated, or willfully aided and abetted the violation of any provision of the Federal securities lawyers or the rules and regulations thereunder.” However, a review of 221 proceedings against lawyers filed by the SEC between 2002 and 2017 found that none resulted in punishment against lawyers for § 205.3 violations. When sanctions were imposed, most were for lawyer fraud, false statements, or misappropriation.22
642One of few public cases of enforcement involved John Isselmann, Jr., general counsel (and the only lawyer) for Electro Scientific Industries. When he learned that the company was overstating its income, he attempted to report that fact at a meeting of the company’s audit committee. He was cut off by the chief financial officer, who had developed the scheme. Isselmann kept silent for five months before resigning and later settled with the SEC for a $50,000 fine. He subsequently attributed his silence to ignorance. He had no accounting experience and only a limited securities law background and “relied heavily on accounting people . . . like outside auditors to flag those issues for me.”23
You are an associate in a large corporate law firm representing Planetary Telecom (PT), an innovative telecommunications firm that has become highly successful in the past five years. You are asked to assist in drafting opinion letters required by securities law in connection with some complex transactions that PT’s chief financial officer (CFO) wishes to undertake. These transactions involve selling unprofitable assets to a company created solely for the purpose of holding those assets (the company is a “special purpose entity” or SPE). The SPE is held in the name of the CFO’s grandmother. By getting the assets off the books, the sale will help PT show a year-end profit and boost its stock prices. Securities law requires that the sale be genuine, which means that the assets must be effectively insulated from PT’s control. The SEC requires an opinion letter attesting that the sale is a “true sale” complying with the effective-insulation requirement. In fact, however, the CFO has structured the deal so that the liabilities will be transferred back to PT in a month. As a consequence, no true sale letter can appropriately be issued. Instead, PT’s accounting firm has stated that a different kind of opinion letter will suffice. This kind of opinion letter, called a “true issuance” opinion, does not assert that the SPE’s assets are insulated from PT’s control. It merely offers an opinion about who owns the assets if the SPE goes bankrupt. Based on your knowledge of securities law, you believe that the true issuance letters you have been asked to draft do not comply with securities law; only a true sale letter will suffice. You are also concerned because securities law requires that such deals have a legitimate business purpose, and you know that the SPEs exist only for the purpose of moving liabilities off the books for accounting purposes—a violation of the law. The accounting firm, however, insists that a true issuance letter is good enough.
You raise your concerns at a meeting with other lawyers working on the project. The meeting’s attendees seem discomfited by your analysis, but they do not participate in the discussion. In your view, it is not even a close call that the transactions are illegal.
643a)What are your obligations under § 205 of the Sarbanes-Oxley regulations? Under Rule 1.13?
b)Suppose that you decide to bring the matter to the attention of PT’s general counsel, its chief legal officer. He indicates that the matter will be reviewed. After two weeks, you remind the general counsel, and, in this conversation, he expresses confidence in the supervising partner’s judgment. What should you do?
c)Your state ethics code has a version of Rule 1.6 that does not allow revealing client confidences to prevent financial frauds. Its version of Rule 1.13 also does not permit disclosure of confidences outside the corporation. However, § 205.3(d)(2) of the Sarbanes-Oxley Act authorizes lawyers to reveal client confidences to prevent material violations of securities law and to rectify frauds that utilized their services. May you disclose your client’s confidences to the SEC? Must you disclose?
References: Rules 1.6, 1.13, 5.2, 17 C.F.R. Part 205.
What happens when lawyers do, in fact, “blow the whistle”—when they go public with client misconduct? Studies of whistleblowers in various public and private sectors find that disclosure can impose substantial personal costs. Some individuals experience harassment, isolation, and economic retaliation, as well as the pain that comes from exposing colleagues’ and friends’ misjudgments. As Sissela Bok notes: “[T]he message of the whistleblower is seen as a breach of loyalty because it comes from within. . . . The conflict is strongest for those who take their responsibilities to the public seriously, yet have close bonds of collegiality and duty to clients as well.”24 One lawyer who became unemployable after bearing an unwelcome message noted, “People think whistleblowers are great but they don’t necessarily want one in their organizations.”25
Yet whistleblowing can also confer great benefits on society. Leaks of confidential information have been critical in exposing major government scandals. Most prominently, a government whistleblower sparked impeachment proceedings against President Donald Trump for pressuring the President of Ukraine to investigate Trump’s political rival. In the private sector, whistleblowers have famously uncovered a range of corporate misconduct including: Cambridge Analytica’s use of Facebook data to skew the 2016 election; Volkswagen’s “defeat devices,” which the company used to circumvent environmental regulations; and the false claim by the health technology company, Theranos, that it had 644devised blood tests requiring only small amounts of blood.26 Other widely publicized cases include those involving tobacco, asbestos, opioids, automobiles, contraceptives, clergy sexual abuse, savings and loan associations, mortgage foreclosures, and irresponsible or predatory lending practices.27 In these and other scandals, as the facts come out, lawyers have been subject to substantial criticism and sometimes financial liability for failing to protect innocent third parties. An example of a lawyer who became the target of criticism for failing to protect the public is David Boies, who was a Theranos board member and whose firm acted as legal counsel for the company at the height of the scandal.28
Lawyers who contemplate publicly blowing the whistle on clients can proceed in one of two ways. First, under Rule 1.13(c), a lawyer may “report out” clear legal violations, unresolved through internal action, which are reasonably certain to result in substantial injury to the company. Alternatively, a lawyer may reveal confidential information under Rule 1.6(b)(1), (2), or (3) to prevent reasonably certain death or substantial bodily harm or to prevent or redress substantial financial injury to third parties resulting from the client’s commission of a crime or fraud. Beyond these ethical standards lies the question of what, if any, protections lawyers have against retaliation by clients for reporting their misconduct. As a practical matter, for outside counsel, the issue in many cases is moot since whistleblowing is typically coupled with lawyer withdrawal under Rule 1.16. However, the issue is more complicated for in-house lawyers, for whom withdrawal might mean unemployment. And there are other ways that clients might retaliate, including impugning a lawyer’s reputation, that must be considered.
Lawyers who call out client misconduct are protected by the same panoply of laws that protect nonlawyer whistleblowers. At the federal level, whistleblower laws date back to the 18th century, when they were enacted to protect subordinate military officers from retaliation for revealing their superior officers’ criminal misconduct.29 The first False Claims Act—a law that imposes liability on individuals and companies for defrauding government programs—was passed in 1863 to combat fraud in Civil War contracting. It included a qui tam provision, permitting whistleblowers to recover a portion of the damages recovered by the government due to the false claim in order to provide a financial 645incentive to report.30 Although the False Claims Act was curtailed during the war years, it was revived and expanded in the 1980s, and, in the decades since, the statute has been used to return some $60 billion to the federal fisc.31
In addition, beginning in the 1970s, the federal government began passing legislation that protects government employees who disclose abuses and also safeguards private employees who report violations of certain federal safety and environmental standards. In particular, the Civil Service Reform Act of 1978 forbids retaliation against whistleblowers and establishes offices to investigate and evaluate whistleblower suits. The Whistleblower Protection Act of 1989, strengthened in 2012 by the Whistleblower Protection Enhancement Act, protects federal employees who disclose “illegal or improper government” activities from supervisors’ or coworkers’ retaliation. The Dodd-Frank Act, passed in the wake of the Great Recession, contains a qui tam provision, permitting whistleblowers to recover a bounty when the whistleblower provides information that leads to successful SEC enforcement actions.32 There are other agency-specific laws, like the Intelligence Whistleblower Protection Act of 1988, which provided the basis for the whistleblower complaint in the Trump impeachment case.33
Likewise, there is a patchwork of regulation at the state level.34 A few states have laws protecting all employees, not only those in regulated industries, who report violations to a government body. About half of all states also have established public policy exceptions to employers’ rights to fire at will in response to ethical resistance. Yet, although most courts have allowed employees to sue for wrongful discharge if they are fired for refusing to do something illegal, similar protection has not been available where employees lose their jobs after aggressively reporting illegalities to management.
But, even with all the above, there are still powerful deterrents to whistleblowing. In some agencies, whistleblowers may find little support from higher ups. A report from the Government Accountability Office “found that the DOJ sided with whistleblowers in only three of the seventy-two cases reviewed, and that whistleblowers suffered savage retaliation that sometimes lasted over a decade.”35 In the private sector, mandatory arbitration agreements can silence whistleblowers. As one 646commentator put it, “If you blow the whistle and no one hears, you’re not a whistleblower; you’re a sitting duck.”36
For these reasons and others, vast numbers of would-be whistleblowers never go public, and some who do prefer to remain anonymous. This has been the case with the whistleblower in the Trump impeachment case (despite efforts to “out” the person). Similarly, Mark Felt, the gutsy whistleblower who was Deep Throat in the Watergate scandal and gave the Washington Post information that exposed President Nixon’s obstruction chose to remain anonymous for three decades, only revealing himself in a 2005 op-ed.37
One clear takeaway from the research on whistleblowing is the need for robust legal protections for those who choose to reveal wrongdoing. Unfortunately, right now, even with the regulatory patchwork described above, may believe that whistleblowers are inadequately supported.
In the few reported cases involving the retaliatory discharge of lawyers who blew the whistle on clients, courts have reached varying results. Several well-publicized decisions have not permitted attorneys’ claims to proceed to trial. In Herbster v. North American Co. for Life & Health Insurance, 501 N.E.2d 343 (Ill. App. 1986), for example, an attorney who worked in-house at an insurance company sought $250,000 in compensatory damages and $10 in million punitive damages after he was fired for allegedly disobeying management’s request to destroy certain files. The trial court granted the insurance company’s motion for summary judgment, and the appellate court affirmed, on the ground that the tort of retaliatory discharge was not available to attorneys under the circumstances. Similarly, in Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991), an in-house lawyer was fired after he told his superior that he would do anything in his power to stop the company from selling kidney dialysis machines known to be ineffective. Denying his cause of action, the Illinois Supreme Court reasoned that wrongful discharge suits were not necessary to encourage lawyer whistleblowing because professional ethics rules already compel attorneys to promote the public interest. Importantly here, unlike Model Rule 1.6, which is merely permissive, Illinois’s version of Rule 1.6 requires lawyers to disclose confidential information to the extent necessary “to prevent the client from committing an act that would result in death or serious bodily injury.”
However, the trend among courts is to be more receptive to the plight of fired attorney whistleblowers.38 Discharges of whistleblowers have been held to violate public policy, to breach an implied covenant of good faith and fair dealing, or to violate an implicit term of attorneys’ employment contracts. For example, in Mourad v. Automobile Club Insurance Assn., 465 N.W.2d 395 (Mich. App. 1991), the Michigan Court 647of Appeals upheld a $1.25 million judgment awarded to an in-house lawyer who sued for retaliatory discharge and demotion. He claimed that the defendant insurance company had punished his resistance to cutting corners and costs in defending policyholders. In the appellate court’s view, the company should have known in hiring the attorney that he would be bound by ethical rules and should have “incorporated this fact in creating a just cause employment contract.”
So too, in General Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994), and GTE Products Corp. v. Stewart, 653 N.E.2d 161 (Mass. 1995), both the California and Massachusetts Supreme Courts upheld corporate counsel’s right to sue for retaliatory discharge under certain circumstances. Those circumstances included discharges exposing criminal conduct or violations of clear public policy that could be proved without violating the attorney’s obligations of confidentiality.
Parallel issues arise when lawyers report misconduct by fellow lawyers. Although Rule 8.3 mandates such reports, as we discussed in Chapter 3, courts have divided over whether lawyers who are fired in retaliation for blowing the whistle have a valid claim of wrongful discharge.
1.In Herbster’s aftermath, Illinois enacted legislation that would explicitly allow in-house lawyers to sue for retaliatory discharge if they were fired for refusing to obey corporate orders to violate a law or rule of ethics. The legislation also permits lawyers bringing such actions to reveal confidences obtained in the course of employment.39 However, the Illinois legislation creates no cause of action for outside counsel or for in-house attorneys fired for attempting to have their employers comply with the law. What might be the basis for these distinctions? Are they appropriate?
2.Should lawyers lose the protection of whistleblower laws if they violate professional duties in reporting client wrongdoing? That was the issue in State of New York ex rel. David Danon v. Vanguard Group Inc.40 In that case, David Danon, while in-house counsel at Vanguard, raised concerns over what he viewed as the company’s illegal tax avoidance, which included improperly charging related entities in order to zero out profits and failing to file proper tax returns—resulting in claimed avoidance of $1 billion of federal tax and $20 million of New York tax. In 2013, Danon was terminated, he claimed, for his “persistent and vocal questioning” of Vanguard’s practices.41 He then filed a qui tam suit under New York’s False Claims Act (FCA). In defense, Vanguard argued that the FCA’s protection is unavailable to a lawyer whose suit relies on client confidences disclosed in violation of the lawyer’s professional duties. Recognizing that New York’s version of Rule 1.6(b) permits a lawyer to reveal client confidences only “to prevent the client 648from committing a crime,” the court agreed. Siding with Vanguard, the court ruled that Danon had gone beyond Rule 1.6(b) in filing the qui tam action, which revealed more confidential information than necessary to stop the alleged tax violations (which the court said could have been halted through means other than a qui tam suit). Accordingly, the court dismissed Danon’s lawsuit. Do you think this is fair? Recall that Danon had raised his concerns within the company to no avail. What other routes of disclosure might have been more appropriate or effective if Vanguard was violating tax law?
In its opinion, the Danon court relied in part on a Formal Opinion by the New York County Lawyers’ Association. Issued in 2013, that opinion stated: “As a general principle, there are few circumstances, if any, in which, in the Committee’s view, it would be reasonably necessary within the meaning of 1.6(b) for a lawyer to pursue the steps necessary to collect a bounty as a reward for revealing confidential information.”42 Do you agree?
3.In 2013, Sanford Wadler, general counsel of life sciences product manufacturer Bio-Rad Laboratories, Inc., drafted a memo to the company’s audit committee in which he stated his belief, based on legal analysis, that Bio-Rad employees in China had violated the Foreign Corrupt Practices Act (FCPA) by engaging in and covering up bribery. The memo laid out the evidence of wrongdoing and recommended that the company “promptly conduct an in depth investigation into business practices in China.”43 In response, Bio-Rad retained outside counsel to conduct an investigation, which concluded that there was “no evidence to date of any violation.”44 Three days later, Bio-Rad’s CEO fired Wadler.
Wadler responded by initiating a three-prong retaliation claim against Bio-Rad. First, he sought protection under Sarbanes-Oxley § 806, which prohibits retaliation against an employee who lawfully reports conduct reasonably believed to violate “any rule and regulation” of the SEC. Second, he drew upon the Dodd-Frank Act, which protects whistleblowers who provide “information relating to a violation of the securities laws to the Commission.”45 Third, he relied on California public policy as set forth in Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980), which held that employees were protected from retaliation for reporting a violation of fundamental public policy. Wadler’s case ultimately made it to trial, and a jury found that Bio-Rad had violated all three laws and returned a verdict of nearly $11 million in Wadler’s favor.
On appeal, the Ninth Circuit reversed on the federal counts, though it upheld Wadler’s state law retaliation claim. The court vacated the Dodd-Frank verdict based on the Supreme Court’s ruling in Digital Realty Trust Inc. v. Somers, 138 S. Ct. 767 (2018), which held that protections only extend to employees who report to the SEC (which Wadler did not). With reference to the claim of retaliation under Sarbanes-Oxley, the court held that 649reporting FCPA violations was not “protected activity,” since Sarbanes-Oxley only prohibited retaliation for reporting violations of SEC administrative rules and regulations.46 However, the court upheld the state law Tameny claim, since Wadler was fired for raising a violation of FCPA, which was, in the court’s view, based on a fundamental public policy.47 As a result, the court let stand nearly $8 million in damages to Wadler.
Unsatisfied, Bio-Rad filed a petition for rehearing en banc (which the Ninth Circuit rejected). Its main argument was that Wadler’s state law claim was based on being fired for protected activity under federal law (i.e., reporting a violation of the FCPA)—a claim the court had already vacated. Do you think it is appropriate for a court to provide whistleblower protections under state law for reporting a company’s federal law violation, when the federal law itself does not provide protection?
4.Whistleblowers are often portrayed as heroic, acting from a selfless purpose and exhibiting courage in standing up to powerful systems.48 In truth, “[w]hile some whistleblowing may be most altruistic, some also occurs for mostly or wholly self-serving reasons, and the bulk most likely lies in between.”49 Often, whistleblowers are complicated figures. For example, Mark Felt, Deep Throat in the Watergate scandal, was motivated in part by the desire to undermine the acting FBI director at the time, whom he sought to replace.50 Should that enter into the analysis?
5.What other structures might encourage ethical resistance in contexts such as those described above? Could more be done through internal corporate and law firm policies or through external support from professional associations? Consider for example:
Which of these suggestions seem most promising? What other measures might be useful?
The issues of client counseling and reporting misconduct take on unique features when lawyers themselves are employed by their organizational clients. This is the situation in which in-house counsel find themselves. How does a lawyer navigate her ethical duties when the representatives of the client are also her colleagues and even her bosses? What does it do to a lawyer’s independent judgment when a fundamental disagreement with the client might cost the lawyer her job? This part explores these questions.
The evolution of in-house counsel positions has placed certain issues of ethical responsibility in new contexts. Although the percentage of lawyers working for private industry has remained fairly stable over the last quarter-century, the absolute size and status of corporate legal departments have grown substantially. Between 1997 and 2008, the 2,000 largest law departments grew an average of 4.8 percent per year.52 In-house counsel have also grown in power, prominence and prestige, and, in many industries, have replaced outside firms as the primary counselor for the CEO and board of directors.53 In-house lawyers have also increasingly assumed central functions in providing basic legal services, selecting and monitoring outside attorneys, and attempting to prevent legal problems.54
In-house counsel’s enhanced role reflects the changing scope and complexity of legal issues facing corporations. Increasing globalization, competition, and activism by regulators and nongovernmental organizations have required more attention. Over the past two decades, businesses have discovered that they can resolve many issues more quickly, cheaply, and effectively using in-house staff, who are familiar with business structure, employees, records, and objectives; who do not have to accommodate other clients’ demands; and who have no incentive to bill unnecessary hours. At the same time, the in-house job has become more attractive to lawyers with top credentials since an in-house position 651often offers more regular and reasonable hours, less travel, and more professional stability, as compared to an outside counsel position, even while compensation remains competitive.
The role of in-house counsel presents both special opportunities and particular challenges. The opportunities arise because counsel are more knowledgeable concerning the organization’s legal issues and have closer continuing relationships with those who can act for it. The challenges arise because lawyers can’t simply “fire the client” who disregards their counsel or leaves them out of the loop. The status and livelihoods of in-house counsel are connected to, and in many ways, dependent on, the actions of business managers who in-house counsel may believe are acting illegally or unethically. How lawyers should respond in these circumstances is the subject of the discussion that follows. In the passage below, Robert Jackall describes the complex choices in-house counsel confront.
Robert Jackall, Moral Mazes: The World of Corporate Managers
122–23 (1988).
Drawing lines when information is scarce becomes doubly ambiguous, a problem that often emerges in shaping relationships with one’s colleagues. For instance, Black, a lawyer at Covenant Corporation, received a call from a chemical plant manager who had just been served with an order from the local fire department to build retaining dikes around several storage tanks for toxic chemicals so that firemen would not be in danger of being drenched with the substance should the tanks burst if there were a fire at the plant. The plant manager indicated that meeting the order would cause him to miss his numbers badly that year and he wondered aloud if the fire chief might, for a consideration, be persuaded to forget the whole thing. Black pointed out that he could not countenance even a discussion of bribery; the plant manager laughed and said that he was only joking and would think things over and get back to Black in a few weeks. Black never heard from the plant manager about this issue again; when they met on different occasions after that, the conversation was always framed around other subjects. Black did inquire discreetly and found out that no dikes had been built; the plant manager had apparently gone shopping for a more flexible legal opinion. Should he, Black wondered, pursue the matter or in the absence of any firm evidence just let things drop, particularly since others, for their own purposes, could misconstrue the fact that he had not acted on his earlier marginal knowledge? Feeling that one is in the dark can be somewhat unnerving.
More unnerving, however, is the feeling that one is being kept in the dark. Reed, another lawyer at Covenant, was working on the legal issues of a chemical dumpsite that Alchemy Inc. [a subsidiary of Covenant] had 652sold. He suddenly received a call from a former employee who had been having trouble with the company on his pension payments; this man told Reed that unless things were straightened out in a hurry, he planned to talk to federal officials about all the pesticides buried in the site. This was alarming news. Reed had no documentation about pesticides in the site; if Alchemy had buried pesticides there, a whole new set of regulations might apply to the situation and to Covenant as the former owner. Reed went to the chemical company’s director of personnel to get the former employee’s file but was unable to obtain it. Reed’s boss agreed to help, but still the director of personnel refused to release the file. After repeated calls, Reed was told that the file had been lost. Reed went back to his boss and inquired whether it might be prudent for Covenant to repurchase the site to keep it under control. This was deemed a good idea. However, the asking price for the site was now three times what Covenant had sold it for. Everyone, of course, got hesitant; another lawyer became involved and began working closely with Reed’s boss on the issue. Gradually, Reed found himself excluded from discussions about the problem and unable to obtain information that he felt was important to his work. His anxiety was heightened because he felt he was involved in a matter of some legal gravity. But, like much else in the corporation, this problem disappeared in the night. Eventually, Reed was assigned to other cases and he knew that the doors to the issue were closed, locked, and bolted.
1.Black and Reed find themselves cut “out of the loop” of information when they raise questions concerning possible violations by other company officials. Yet both of them sense that the problems they noted—the possibility of bribery by the chemical plant manager (Black) and the possibility that the company was doing nothing about dangerous pesticides (Reed)—have not gone away. How should they respond? Are there any affirmative steps they may take to find out what has happened? If so, must they follow up on the matter?
2.Professor William Simon writes: “Every corporate lawyer knows that the manager is not the client. . . . [F]ew corporate lawyers have a coherent idea of what a corporate client could be other than the manager.”55 How much help do the Rules provide in figuring out what a corporate client could be other than the manager? As discussed earlier, Rule 1.13 states that an organization’s lawyer represents the organization and has special duties to safeguard the organization from employees’ illegal actions. Does that Rule tell Black and Reed how to proceed? Does it adequately take account of the public’s interest? Does it provide lawyers with adequate leverage in conversations with corporate officers? That is, does the Rule permit them to say truthfully something like: “I could be subject to discipline if I didn’t follow 653through on this matter!” If not, how would you draft an ethical rule or statutory provision that would help Black and Reed?
3.Jackall notes that “drawing lines when information is scarce becomes doubly ambiguous”—“doubly,” because there is no clear answer either to the question “what happened?” or to the question “is what happened acceptable?” Does the scarcity of information absolve a lawyer from responsibility for drawing lines? It may seem that the answer is clearly “yes”: one cannot be held responsible for what goes on behind one’s back. But in that case, an organization could absolve all but a handful of its employees from responsibility simply by dividing and controlling information within the organization. If an organization should not be able to restrict responsibility so easily, how would you prevent it?
4.How would you respond to the situations facing Black and Reed? Do the responsibilities of inside and outside counsel differ in such circumstances? How helpful are Rules 1.13, 1.6, and 5.1?
4.Hewlett Packard: A Case Study56
Consider the role of in-house counsel in identifying and reporting misconduct by corporate representatives in the context of the following case study of Hewlett Packard (HP). As you read the case study, consider who is speaking on behalf of the client and how that impacts the responsibilities of different lawyers in the company’s general counsel office. What might the lawyers have done to prevent the controversy?
In 2006, the Silicon Valley computer company HP became embroiled in a highly publicized scandal. Problems arose from “pretexting,” the use of investigators to obtain confidential information through false pretenses. In this case, HP management used pretexting to investigate members of its own board of directors, among others. The case provides a highly illuminating portrait of “how the good go bad”—how well-intentioned lawyers and managers can become complicit in conduct widely viewed as unethical if not unlawful.
The scandal dates back to 2005, when leaks of confidential information accompanied the widely publicized firing of HP’s CEO, Carly Fiorina. Patricia Dunn, a member of the board of directors, became its new chair, and Mark Hurd became CEO. Among Dunn’s first challenges was to address leaks that could only have come from board members or top executives.
Finding the leaker took on extra seriousness in January 2006, when a reporter ran a story on HP’s long-term strategy. Board member George Keyworth later acknowledged having been the reporter’s anonymous 654source. He did not believe he had disclosed any proprietary information to her and considered the story to be good press. HP’s leadership, by contrast, viewed the story with alarm. HP’s general counsel, Ann Baskins, asked an HP employment lawyer, Ken Hunsaker, to head an investigation to root out the leaker. Hunsaker took on the assignment with gusto, and through pretexting (impersonating HP board members and others), Hunsaker and his team of investigators obtained phone records of HP employees, directors, and journalists. They also created a fictional disgruntled HP employee who emailed the reporter who wrote the January 2006 story and attached to the email a file with tracking capability. The investigative team hoped that the reporter would forward the email to her source for confirmation. Hurd, HP’s CEO, authorized the process but later denied knowledge of the tracking aspect.
Around the same time, Baskins asked Hunsaker to further explore the legality of pretexting. Hunsaker put the question to an HP security manager who responded that pretexting was common. In the security manager’s view, the practice was “on the edge, but above board.” Hunsaker’s now infamous email answer responded: “I should not have asked.” Beyond that, Hunsaker spent only an hour researching the issue online. It is not clear what sources he consulted, but had he looked at the websites of the Federal Trade Commission or the Federal Communications Commission, he would have discovered that both considered the practice illegal.
The following month, in February 2006, the pretexting issue arose again. Two HP security employees sent an email to Hunsaker stating that pretexting “is very unethical at the least and probably illegal.” Around the same time, Baskins again asked Hunsaker about the legality of pretexting, and he put the question to Ronald DeLia, a security contractor. This time, DeLia consulted his outside counsel. That lawyer offered a quick judgment, based on research done by a summer associate the preceding year, that pretexting was not illegal; the lawyer later claimed that he had not been hired to research the issue. DeLia then sent an email to Hunsaker indicating that no state or federal laws prohibited pretexting but that there was “a risk of litigation.”
In March, Hunsaker circulated a report connecting board member Keyworth to the leaks. In preparation for a meeting with Hurd, Baskins instructed Hunsaker to talk to outside counsel about pretexting. Hunsaker asked the security manager to consult DeLia’s lawyer. This time, the lawyer had a paralegal prepare a response. She told the security manager that she was unable to find any criminal charges to indicate that pretexting was illegal. In April, at Baskin’s request, Hunsaker prepared a memo on the legal issues raised by pretexting. He noted his online research and his contacts with DeLia and his outside counsel. According to the memo, DeLia’s outside counsel had conducted “extensive research” (which it had not) and found the practice “not unlawful.”
655In May, a divided board asked Keyworth (the leaker) to resign. One of its most influential members, Tom Perkins, objected to the decision and resigned in protest. Perkins also recalled objecting to the legality of pretexting, though Dunn, the board’s chair, and other board members recalled no such objection. Larry Sonsini, HP’s outside counsel, then contacted Perkins asking how to handle the resignation. Post-Enron reforms require that a company report board resignations to the SEC, and if the resignation stems from any disagreement with the company or the board, the reasons must also be disclosed. Perkins said his disagreement was with Dunn, not the company, and the SEC report included no reasons.
Perkins subsequently consulted law professor Viet Dinh, who served with him on another board. Professor Dinh raised concerns about pretexting that Perkins then conveyed to Sonsini. Sonsini responded that pretext calls were a “common investigatory method” and that “[i]t appears, therefore, that the process was well done and within legal limits.” Perkins relayed this to Dinh who expressed doubts that the records could have been lawfully obtained. Perkins’s dissatisfaction continued to escalate after he received a notice from the phone company suggesting that his phone records were “hacked.” He was also angry that the minutes of his final board meeting did not reflect the objections to pretexting that he recalled making. Perkins demanded that the minutes be amended and that the company file a notice with the SEC since he now considered his dispute to be with the company rather than merely with Dunn. Baskins subsequently wrote to Perkins denying his requests, because the minutes had been approved and were accurate as drafted, and because he had earlier characterized the reasons for his resignation as personal. Perkins, now represented by Dinh, then contacted the SEC, the California Attorney General, and the U.S. Attorney for the Northern District of California, which all launched investigations.
A national scandal erupted, fueled by congressional hearings at which Dunn and Hurd testified and the two in-house lawyers, Baskins and Hunsaker, invoked their Fifth Amendment privilege. Dunn, Baskins, Hunsaker, and the security manager were all forced to resign. The California Attorney General charged Dunn, Hunsaker, DeLia, and two private investigators with four felony counts: fraudulent wire communications, wrongful use of computer data, identity theft, and conspiracy. The counts were later reduced to misdemeanors. A state court dismissed the charges against Dunn, and then later against all other defendants, based on evidence that they had performed community service. One investigator pleaded guilty to federal charges.
In his congressional testimony, Hurd apologized for the “rogue” investigation and for authorizing the fake email. Patricia Dunn, on the other hand, stated: “I do not accept personal responsibility for what happened.” She added: “I relied on the expertise of others in whom I had full confidence. I deeply regret that so many people, including me, were 656let down.” Larry Sonsini maintained that his response to Perkins about the legality of pretexting was not a “legal opinion. It was conveying the truth of what I was told.” Ann Baskin made no public statement. Her lawyer told New Yorker reporter James Stewart: “A general counsel has to be able to rely on her senior counsel’s research and advice, particularly when she has hundreds of lawyers working for her worldwide.” Hunsaker’s lawyer assured Stewart that “[t]here cannot be a violation without intent to violate the law and Kevin absolutely believed that the investigation was being done in a legal and proper way.”
The financial and personal effects of the scandal varied considerably. HP reimbursed Perkins for $1.5 million in legal expenses and agreed to pay Keyworth’s as well. Ann Baskin, in exchange for cooperating with HP’s investigation and releasing the company from liability, received the right to exercise stock options worth over $3.7 million, with another $1 million in options to vest immediately. Mark Hurd, who according to Dunn, had received the same legal advice that she had received, got a bonus of $8.6 million in 2007, along with options on over 500,000 shares of stock. HP stock rose to its highest value in over six years.
Both Congress and the California legislature subsequently passed legislation making pretexting a criminal defense.
1.In this case study, at least five lawyers confronted the legality of pretexting: HP’s in-house counsel Baskins and Hunsaker, investigator DeLia’s outside counsel (whose research was done by a summer associate and a paralegal), HP’s outside counsel Sonsini (who denied offering a legal opinion), and Dinh, the counsel for the board member who resigned in protest. Of the five, Dinh was the only one who objected to pretexting. How would you evaluate the conduct of the lawyers in the HP case? What accounts for their conduct? Could, or should, any of the attorneys be subject to professional discipline or malpractice liability? Did any violate Rule 1.1 regarding competence? Did any fail to exercise appropriate supervisory responsibility?57 What would you have done in their place?
2.In the aftermath of the scandal, HP hired Bart M. Schwartz, a former federal prosecutor, to evaluate the company’s ethical policies and its conduct of investigations. He told a New York Times reporter that he was struck by the lack of consideration of ethical issues in the company’s efforts to trace press leaks. “Doing it legally should not be the test; that is given. You have to ask what is appropriate and what is ethical.”58 What might explain the absence of ethical considerations for HP lawyers and managers? What lessons does their experience hold for general counsel?
6573.“Where were the lawyers?,” asked one member of Congress in hearings on the HP scandal. “The red flags were waving all over the place,” but “none of the lawyers stepped up to their responsibilities.”59 In search of explanations, some commentators have built on identity theory and research. This framework demonstrates how individuals’ role identification can encourage them to process information in ways that support their self-perception.60 So, for example, a survey of several hundred in-house counsel found that those who identified themselves more as an employee than a lawyer were more likely to interpret an attorney’s obligations in a hypothetical ethical dilemma in ways consistent with management’s interests rather than with professional norms.61 Could such dynamics have been at work in the HP scandal? What correctives might be effective?
4.How the allocation of work to in-house counsel affects the exercise of ethical responsibility is a matter of longstanding debate. The traditional view has been that inside counsel would have less ability to check corporate misconduct because of their greater economic and psychological dependency on the company and their socialization into organizational culture. (In some civil law countries, where ethical rules place special emphasis on lawyers’ independence from their clients, in-house counsel are categorized as a separate profession altogether whose members do not belong to the bar.) Compounding the above, where a significant part of in-house attorneys’ compensation involves stock options, there may be economic incentives to overvalue the company’s short-term profit objectives at the expense of long-term values. To the extent that in-house counsel participate in shaping policies and transactions, these lawyers may have difficulty later exercising independent judgment concerning the legal issues involved.62 As the Jackall and HP case studies make clear, lawyers, like other managerial employees, face considerable pressure to remain team players. The same has been true of general counsel in other corporate scandals, such as Enron and Tyco. According to Steven Gillers, the job of in-house attorney is the most “ethically challenged position in the legal profession,” because “the client is the corporation but the directions come from management.”63 That difficulty is reflected in the significant number of criminal prosecutions of in-house counsel for aiding and abetting fraud.64 In recognition of these compromising 658influences, audit companies composed of independent directors often rely on outside counsel for advice on ethics and compliance issues.65
Yet comparable pressures can exist for outside counsel. Many firm lawyers bill a substantial percentage of their time to a single client and find that it is “sometimes easier to say ‘no’ to a captive client than to a client who may take its business elsewhere.”66 Moreover, outside lawyers may be less able to exercise their independence because they may have less access to information and fewer informal channels of influence. Eve Spangler’s study of lawyers working for organizations comments on this debate:
In any comparison of in-house and outside legal services, law firms maintain that their independence is their single most significant asset. One law firm partner explains:
It is not uncommon for us to tell the president that he’s a turkey. You know, “You’re a goddamn fool, and you’ve got an environmental problem right now and you’ve got to spend a million dollars to fix it even though it will lose you money this year, or you’re going to go to jail. That’s the magnitude of your problem.” I’d like to hear an in-house lawyer say that to a president who just had a stockholders meeting where he’s promised them the world. I’d like to see an in-house lawyer tell his board of directors that his president is violating the Foreign Corrupt Practices Act. The fact is, there’s just no room for willful blindness at that level. If you have both loyalties and accountability to the superior, you can’t be independent.
This stance is in sharp contrast to that of the in-house lawyers who say, “I am first a corporate officer and second I happen to be a lawyer,” or, again, “I’m pretty much [a company man] through and through.”67
Nevertheless, the in-house attorneys Spangler interviewed insisted that they rarely face situations where job pressures would force them to compromise their judgment. They reported that they meet their ethical obligations by counseling executives to look to the long-term interests of the company rather than short-term advantage. And, when executives reject their advice, they report up the ladder when they have to even though it creates difficulties working with people “ ‘after you’ve brought the world down on their heads.’ ”68
In a practical sense, much of the debate over inside and outside lawyers’ ethical autonomy may have missed the mark. As Elliot Freidson observes, “surely the more critical matter is the relationship one has to the market” and to one’s superiors, whether they are corporate managers or senior 659attorneys in a firm.69 Lawyers’ economic and psychological sense of vulnerability and the support available for ethical resistance is likely to be more significant than whether a particular lawyer practices in a corporate or law firm setting.
5.In 2003, the ABA Task Force on Corporate Responsibility recommended that a public company’s board of directors, not management, be given responsibility for the selection, retention, and compensation of general counsel, and that the attorneys in that position have regular meetings with the board’s independent directors to discuss legal compliance matters.70 To what extent would this practice assist in-house counsel facing difficult ethical issues?
6.A related, equally important issue is: Under what circumstances should either in-house or outside counsel withdraw from representation because a client declines to accept the lawyer’s advice? Geoffrey Hazard observes that representation of clients on an ongoing basis imposes moral responsibility for the client’s conduct in a sense that representation of clients for past acts does not. To defend an individual charged with murder is not the same as being “on retainer to the Mafia,” he insists.
What follows from that distinction? Hazard goes on to argue:
The obvious answer for the advisor whose advice is ignored is that he can resign. In some circumstances that is the only honorable course to be followed, but it is impractical as a response to all except fundamental disagreements. More important, though not often recognized by the critics of legal and other advisors to corporations, the sanction of resignation involves some ethical problems of its own. If taken seriously, it should be applicable only when any right-thinking advisor would resign. But this is to say that such a client ought to have no right-thinking advisor at all, at least until the client redirects his conduct so that it would no longer be objectionable to a right-thinking advisor. There are situations in which it seems proper that the client should suffer that kind of penalty, for example if he insists on fabricating evidence or carrying out a swindle. But if the case is less extreme than this, the sanction of resignation is too severe. It implies that the client should have to function without proper guidance, or perhaps cease functioning at all, because its managers do not see fit to follow the advice of its advisors. . . .
If this were the consequence that should ensue from a client’s refusal to follow advice, it would mean that the advice was in effect peremptory—not an informed suggestion but a command. When an advisor’s advice is in effect peremptory, however, the result is a reversal of the underlying structure of responsibility for the 660organization’s conduct. The advisor becomes the ultimate arbiter and the client a subordinate. . . .
It seems unlikely that such a transfer of responsibility is contemplated by those who say that an advisor has some kind of responsibility for what his principal does. Probably it is assumed that the organization will not be left helpless for want of essential assistance, but rather that some other advisor will come along to take the place of the right-thinking advisor who resigns. This assumption, however, has some curious implications. It may mean that an equally high-minded advisor can step in as successor because he was not involved before. As a result, that which is reprehensible when done by one advisor in continuous service becomes acceptable when done by multiple advisors acting in a relay. . . . On the other hand, the assumption may be that a less high-minded successor can be expected to take over. If so, it reduces the significance of resignation to a merely personal matter and perhaps a case of narcissism. (It may also have the result of simply insulating the client from conscientious advisors in the future.) Still another possibility is that the client will figure out how to retain high-minded advisors without creating situations in which they will feel impelled to resign; the client will learn not to ask for advice in the cases that might put his counsel under that kind of pressure.71
Do you agree? Would you accept such rationales for continued employment in less respectable contexts (for example, by accused war criminals who argued that their replacements would have been worse)? Is it possible that lawyers’ threats of resignation could up the moral ante and encourage clients to rethink their conduct as well as encourage other attorneys to do the same? Is advice really peremptory as long as the advisor is not the proverbial “last lawyer in town,” a presumably rare circumstance for corporate counsel?
When lawyers represent the government—be it as a lawyer for a government agency charged with defending it from lawsuits or a city attorney advising lawmakers on the legality of proposed local policy—the ethics rules generally applicable to lawyers apply with equal force. Government lawyers are organizational lawyers after all: they work on behalf of government bodies whose interests and goals define the role that those lawyers play. Accordingly, government lawyers, like their private sector counterparts, must fully adhere to the reporting duties set forth in Rule 1.13, as well as other fundamental ethical standards that have formed the central focus of our inquiry in this chapter. What does change when we turn our gaze to government practice is the context in which professional duties are interpreted and enacted, which influences 661how government lawyers understand what they can and cannot do. The ethical context of government lawyers, as we explore in this section, can cut in different directions. On the one hand, government lawyers work in contexts in which the identity of the “client” is often less clear than in the private sector, and, moreover, the government lawyer’s “role as a gatekeeper for upholding the rule of law” may impose heightened duties to orient the lawyer’s actions toward advancing some conception of the public good.72 This creates ethical questions when government lawyers are placed in the position of defending government interests: Should they represent the government with zealous partisanship? Should their representation soft-pedal certain positions to more closely align with the public interest? And when should government lawyers have autonomy to define goals and strategies.73 On the other hand, a government lawyer can face significant pressure by powerful government officials to pursue policy objectives that the lawyer may believe to be of dubious legality. This section deals with both of these complex issues.
We begin with the fundamental, and surprisingly difficult, question: Who precisely is “the client” of the government lawyer? Theoretically, the client could be the public, the government as a whole, the branch of government in which the lawyer is employed, the agency in which the lawyer works, or the officials responsible for the lawyer’s actions.
That difficulty arises in a wide variety of factual settings. In some instances, lawyers in one agency, like the DOJ or a state attorney general’s office, are responsible for representing another agency’s position but find that position inconsistent with applicable laws, policies, or societal concerns. In other contexts, higher authorities within the lawyers’ own agency or the central administration may direct line-level lawyers to act in ways that they find similarly problematic. For example, a change in administration during the pendency of litigation may result in directives for a government lawyer to “switch sides,” although the lawyer believes that the new position is unsupported by the law or facts. Dilemmas also arise when the legislative or executive branch is unwilling to provide adequate funding for government institutions, such as prisons or mental health facilities. Government attorneys may then be in the position of defending conditions that they believe violate constitutional standards or individual rights. Another common problem involves confidential information that lawyers believe should be shared with other legislative, executive, or judicial decisionmakers or with the general public.
Analyzing this question, courts, commentators, and bar ethical codes have expressed different views, although they all maintain that lawyers 662 in public office owe special responsibilities to the public. 74 The difficulty lies in determining what constitutes the public’s interest and what it requires when members of the government disagree.
One prominent position posits that the client is the government agency that employs the lawyer. 75 This “agency approach” is reflected in Rule 1.13 of the Federal Bar Associations’ Model Rules of Professional Conduct for Federal Lawyers. However, the Rule includes the caveat that a government lawyer may have “authority to question [agency] . . . conduct more extensively than . . . a lawyer for a private organization in similar circumstances.” 76 The Restatement (Third) of the Law Governing Lawyers offers a variation of the agency approach. Comment c to § 97 suggests that, in most cases, the client of the government lawyer is the agency involved in the underlying dispute but that the lawyer’s responsibility may differ depending on the circumstances.
The agency approach has both pros and cons. The primary advantages of the agency approach are clarity and political accountability. By limiting the government lawyer’s discretion to make independent judgments of the public’s interest, this approach vests decisionmaking authority with elected officials who may have a broader perspective and are theoretically responsible to the public. Critics charge, however, that the agency approach reflects an unrealistic assumption of political oversight and an impoverished conception of the government lawyer’s social responsibilities. After all, most government decisions are made by middle-level bureaucrats who are not in any direct sense subject to majoritarian control. Even senior agency officials have attenuated democratic accountability. High-ranking federal officials can owe their appointment to a single election where no candidate has even received a majority of the popular vote. 77 More fundamentally, the agency-as-client framework may unduly restrict the lawyer’s obligation as a government employee to ensure that government policy is appropriately carried out. Where, for example, higher-level officials are directing a lawyer to act in ways that defy applicable law, regulations, or well-established legal principles, some effort to challenge that decision is consistent with democratic values.
To that end, a rival approach—endorsed by the Model Rules—identifies the government lawyer’s client more broadly. Comment 9 to Rule 1.13 (which governs the organization as client) explains:
[9]The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be 663 more difficult in the government context and is a matter beyond the scope of these Rules. . . . Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. . . .
In its most expansive version, this approach counsels government lawyers to take action in accord with the “public interest,” 78 and to promote the “rule of law.” 79 This approach, however, raises many questions since what counts as the public interest or the rule of law in any given context may be deeply contested. Rule 1.13 itself provides little help in this regard: It places beyond its scope the question of what concrete actions lawyers should take in the face of wrongful conduct. 80
1.The independence of government lawyers from political pressure is a cornerstone of the rule of law, which exists to check political abuse. What can and should a government lawyer do when asked to defend a policy or take a legal position she thinks is contrary to law? One option is to resign. Perhaps the most famous case in this regard occurred during the Nixon administration. Archibald Cox, the first special prosecutor of the Watergate break-in, sought to compel Nixon to produce tapes of White House conversations concerning the cover-up. When Nixon asked Attorney General Elliot Richardson to fire Cox, Richardson instead resigned, as did his deputy William Ruckelshaus. The official next in line then followed the President’s orders and abolished the special prosecutor’s office. The public was outraged over what became known as the “Saturday Night Massacre,” and Nixon subsequently resigned under threat of impeachment.
664Lawyers in the Trump administration have faced what observers like Professor Bradley Wendel have characterized as serious threats to their independence.81 Consider the series of decisions made by lawyers surrounding the 2016 presidential election. One of the most contested issues in the 2016 presidential election was the decision by Democratic candidate Hillary Clinton to use a private email server for government business while she was Secretary of State. The FBI, headed by former federal prosecutor James Comey, opened an investigation. His first controversial decision came on July 5, 2016, when Comey departed from longstanding FBI practice to comment publicly on the Bureau’s finding that Clinton had used her personal email to review at least thirty-six classified emails. Comey characterized the conduct as “extremely careless” rather than criminal, and stated the FBI would not recommend charges against her.82 His second decision, two weeks before the 2016 election, was to disclose that the FBI had reopened the investigation after discovering hundreds of thousands of emails from Hillary Clinton on the personal computer of one of Clinton’s staff members, who was married to former Congressman Anthony Weiner, himself under investigation for sexting with an underage girl. Reflecting on his pre-election announcement, Comey stated he was concerned that he could not complete an investigation of the newly discovered emails before the November 8th election and that he faced two “terrible options” about whether to disclose the inquiry. As he saw it, “to speak might affect the election. To fail to speak would be an affirmative act of concealment.”83 As between those options, he considered that concealment would be worse. After Comey’s announcement, Trump stated: “What happened today, starting with the FBI—maybe the system will become a little less rigged,” and went on the next day to convey his “respect” for what Comey did.84 Comey’s announcement was viewed by many credible sources as a significant factor tipping the election to Trump.
As it turned out, as the FBI was investigating the Clinton emails, it also opened an investigation into Russian meddling in the ongoing presidential election. Because he had been implicated in misleading Congress during his confirmation hearings about his own contacts with Russia during Trump’s campaign, Attorney General Jeff Sessions recused himself from the investigation on March 2, 2017. After Comey publicly confirmed the existence of the Russia investigation on March 20, Trump began discussing firing Comey with his aides and asked CIA director Mike Pompeo to intervene, which he declined to do.85 Trump then called Comey to ask if Comey would “lift the cloud” of the Russia investigation by confirming publicly that Trump himself was not under investigation.
In April, Rod Rosenstein was confirmed as deputy attorney general, and he took over the Russian investigation, given Sessions’s recusal. On May 3, 6652017, Comey testified in front of the Senate Judiciary Committee, where he explained his actions in relation to the Clinton email investigation while refusing to discuss whether he was investigating collusion between Russia and the Trump campaign. Furious, Trump resolved to fire Comey and, soon thereafter, on May 8, Trump met with Sessions and Rosenstein, who agreed to write a letter justifying Comey’s termination. In the letter, Rosenstein stated that “I cannot defend the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. . . . The Director was wrong to usurp the Attorney General’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution.”86 Sessions followed with a brief letter to the president calling for “a fresh start” at the FBI.87 The following day, Trump sent a letter to Comey stating: “I have received the attached letters from the Attorney General and Deputy Attorney General of the United States recommending your dismissal as the Director of the Federal Bureau of Investigation. I have accepted their recommendation and you are hereby terminated and removed from office, effective immediately.”88
Trump immediately contradicted the letters’ formal reference to Comey’s handling of the Clinton email investigation as the basis for the termination, telling a reporter, “In fact when I decided to [fire Comey], I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have won.’ ” A week later, on May 17, 2017, Rosenstein announced the appointment of Robert Mueller III as special counsel in charge of investigating collusion between the Trump campaign and Russian election interference. After news reports indicated that Mueller was possibly pursuing an obstruction case against Trump for firing Comey (among other actions), in June 2017, Trump ordered White House Counsel Donald McGahn II to fire Mueller. McGahn refused, saying that he would quit before executing the order. Trump subsequently backed down.89
How would you assess the conduct of the main lawyers in this chain of events: Comey, Sessions, Rosenstein, and McGahn?
2.In justifying his authority to fire Mueller, Trump told the New York Times, “I have absolute right to do what I want to do with the Justice Department.”90 His lawyers asserted similar claims, arguing that because Trump was the head of the Executive Branch with authority over all that happened within it, he had “exclusive authority over the ultimate conduct 666and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.”91
Professors Bruce Green and Rebecca Roiphe disagree:
The history and policy strongly suggest that, as a general matter, the Attorney General and subordinate prosecutors may not accept direction from the President but must make the ultimate decisions about how to conduct individual investigations and prosecutions, even at the risk of being fired for disobeying the President. The Constitution does not determine whether ultimate authority rests with the President or the prosecutors, leaving Congress to decide. Congress has not explicitly answered the question, but its silence since the late nineteenth century in the face of the evolving importance of prosecutorial independence suggests that Congress has acquiesced in a relationship in which the President may express views to the Attorney General, but the ultimate authority rests with the Attorney General or with subordinate prosecutors to whom the Attorney General delegates authority.92
Who do you think is right?
3.Aside from resigning, another option for government lawyers instructed to advance positions of dubious legality is simply to refuse. This was the strategy taken by DOJ lawyer Sally Yates, who agreed to become acting Attorney General at the beginning of the Trump administration until a successor could be confirmed. In that role, Yates was immediately thrust into the controversial role of defending Trump’s January 27, 2017 Executive Order banning immigration from seven Muslim-majority countries. Yates refused to defend the Muslim Ban, stating in a letter to DOJ lawyers that she was not “convinced that the executive order is lawful.”93 For this, she was promptly fired by President Trump. Some commentators thought she should have resigned if she believed the Muslin Ban was illegal,94 though her view was that she did not want to pass the problem on to another lawyer. Others thought she was right to assert the Attorney General’s independence and to force Trump to fire her.95 What is your view? What would you have done in her position?
4.Contrast Yates’s action with that of Sarah Fabian, a DOJ lawyer charged with defending the Trump administration’s policy of detaining migrant children. In a Ninth Circuit hearing in a case challenging the policy, Fabian was asked to argue in favor of the administration’s position that the 667detentions complied with a prior settlement agreement requiring “safe and sanitary” conditions. Judge A. Wallace Tashima, himself detained as a boy in a Japanese-American internment camp during World War II, asked: “It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not ‘safe and sanitary’. . . . Wouldn’t you agree with that?” Fabian replied, “Well, I think, in [Custom and Border Patrol] custody, it’s frequently intended to be much shorter term. So it may be that for a shorter-term stay in C.B.P. custody that some of those things may not be required.”96 An edited video of this exchange went viral, receiving 20 million views. In response, Fabian received death threats. Fabian, hired by the Justice Department under Obama to work in the DOJ’s Office of Immigration Litigation, posted a private message on Facebook: “I’m so sorry that happened and I wish I could go back and try to say something better to make the position more clear, and since I can’t lots of people may will hate me for a long time.”97 Was there anything Fabian could have said to justify the government’s policy? Did she have any options other than resigning if she disagreed with how the children were being treated?
5.After being fired by Trump and publishing his memoir, Comey wrote an op-ed in the New York Times commenting on the failure of other Trump administration lawyers to stand up to Trump’s subversion of the rule of law. According to Comey, accomplished attorneys such as Attorney General William Barr and Assistant Attorney General Rod Rosenstein end up compromising their reputations because:
Trump eats your soul in small bites. It starts with your sitting silent while he lies, both in public and private, making you complicit by your silence. In meetings with him, his assertions about what “everyone thinks” and what is “obviously true” wash over you, unchallenged . . . because he’s the president and he rarely stops talking. As a result, Mr. Trump pulls all of those present in a silent circle of assent. Speaking rapid fire with no spot for others to jump into the conversation, Mr. Trump makes everyone a co-conspirator to his preferred set of facts or delusions. . . . From the private circle of assent, it moves to public displays of personal fealty. . . . To stay you must be seen as on his team, so you make further compromises. . . . And then you are lost. He has eaten your soul.98
If Comey is right about that process, what could help lawyers avoid it?
6.In addressing the government lawyer’s responsibility to seek justice, Federal District Judge Jack Weinstein gives an example from his experience as counsel for a New York county. The case involved a condemnation proceeding in which government negotiators had worked out a property 668valuation settlement with an elderly couple who were unrepresented by counsel. The offer was about a third of what county appraisers had estimated the property to be worth, and the couple was unaware of its value. Weinstein believed that it was inappropriate for a public servant to exploit the landowners’ ignorance, even though it would save taxpayers money, and decided to call them up and tell them they were entitled to more than they were asking for.99 Do you agree with Weinstein’s analysis? What would you have done in Weinstein’s shoes?
In this section, we set out the ethical terrain of government lawyering. We begin with an overview: illuminating the diversity of professional contexts in which government lawyers practice and discussing how that diversity shapes the ethical issues government lawyers face and how they address them. We then turn to focus on the special problem of advising the government about the legality of policy, using the infamous case of the Office of Legal Counsel’s “Torture Memos” as a case study.
The Ethical Contexts of Government Lawyering
While approximately 10 percent of lawyers are employed by the government, this figure obscures wide variation in practice site and style.100 For one, lawyers work at different levels of government—federal, state, and local—and, within these levels, are employed by different entities—courts, executives, administrative agencies, and legislatures. Moreover, government lawyers hold different roles and engage in distinct types of practice. Some, as we saw in Chapter 8, are prosecutors with ethical duties to seek “justice” in enforcing criminal law, while others engage in civil litigation. Still other government lawyers play an exclusively advisory role. Much of government lawyer advising is routine: providing risk assessments to lawmakers about the legality of policy proposals or executive action, and often drafting policy to comport with legal requirements.101 In one final variation, across all of these contexts, a small subset of government lawyers are political appointees charged specifically with advancing a particular administration’s policy priorities, while most are “career” lawyers who staff agencies and carry out their functions across administrations despite changes in the governing party.
669This wide variation makes it impossible to draw general conclusions about any monolithic “ethics” of government lawyering, but it does help us to frame different types of professional challenges government lawyers face. We note at the outset that our discussion largely brackets the ethical duties of one class of government lawyers, prosecutors, whose special ethical obligations are more fully treated in Chapter 8.B.’s discussion of advocacy in the criminal law system.
Within the government’s corps of civil lawyers, as indicated above, one may differentiate between those who engage in litigation from those whose primary role is advising. Civil litigators work at all levels, defending government when sued and engaging in affirmative litigation to advance defined governmental interests. Lawyers in the DOJ’s Civil Division, for example, defend the federal government against a range of lawsuits arising out of federal policy, while also bringing affirmative litigation to recoup money lost to the federal government through fraud. Similarly, state attorneys general and city attorneys play defensive and offensive roles, with an increasing number filing affirmative litigation to enforce local policy around issues like public health and consumer protection, while challenging the federal government’s policies on health care, climate change, and immigrant rights.102 Governmental agencies also have their own counsel who are authorized to pursue legal action to enforce their mandates. For instance, state employment and labor agencies regularly pursue litigation to enforce the rights of workers denied minimum wage or overtime, or who have been discriminated against; these cases overlap with private enforcement actions but are typically brought when claims are insufficient to attract private counsel or when they raise significant policy considerations.
Although, as we have seen, it is widely accepted that criminal prosecutors have special duties to the public, Professor Bradley Wendel argues that “[g]overnment lawyers appearing in a litigated proceeding in a civil matter on behalf of the United States or a particular federal agency or officer are advocates like any other.”103 However, agency lawyers are not of one mind on a government lawyer’s appropriate ethical conduct in litigation, taking different views on such questions as whether the government should disclose adverse material facts, assert a statute of limitations, or fail to inform opposing counsel of impending procedural defects in order to defeat an otherwise meritorious claim.104 State attorneys general have clashed with governors and legislatures over whether to defend or bring lawsuits, such as challenges to the federal 670comprehensive healthcare reform act.105 In one oft-cited case, Abner Mikva, then Chief Judge of the D.C. Circuit, chided attorneys for the Federal Energy Regulatory Commission who pursued an appeal after it was clearly moot. Judge Mikva said it was “astonishing” that the government lawyers could “so unblushingly deny that . . . [they have] obligations that might trump the desire to pound an opponent into submission.”106
Outside of litigation, government lawyers routinely counsel and advise public officials about their legal responsibilities. As we discussed in Chapter 10, under Rule 2.1, when any lawyer acts as an advisor, that lawyer “shall exercise independent professional judgment and render candid advice,” which means having to provide objective legal interpretations that accurately convey legal risks. Typically, government lawyers’ interpretations of law are never tested in court. Their advice to officials may be confidential, and it may lead officials to make decisions that do not become public. Even when officials’ interpretations of law are challenged, courts may refuse to review executive actions for constitutional reasons grounded in the separation of powers. Sometimes courts regard the issues as political questions, or questions about which the executive deserves deference. When, for one reason or another, judicial review is lacking, the legal interpretations government lawyers provide to officials become, for all practical purposes, binding law. Arguably, this places a special burden on government lawyers. In Wendel’s view, advising
envisions a highly fiduciary role in which lawyers use reasonable care and effort to provide accurate, unbiased advice to clients, who then are responsible for deciding how to proceed. There is nothing wrong with advising the client that one proposed route is likely contrary to applicable law, but suggesting there may be a different route to the same goal that would be legally permissible.107
In addition, some have argued that government lawyers have heightened responsibilities of fidelity to law because they are themselves government officials.108
1.With regard to the appropriate ethical conduct of civil government lawyers in litigation, consider Lybbert v. Grant County, 1 P. 3d 1124, 1129 n.5 (Wash. 2000). There, the Washington Supreme Court held that it was 671permissible for government lawyers to have lulled opposing counsel, who had mistakenly served the wrong county official, into thinking that the government would defend on the merits, when, in fact, the government lawyers planned to file a motion to dismiss once the statute of limitations ran (which they did). According to the court, the government needed to be “scrupulously just” only when it was acting in a regulatory capacity. When litigating, government lawyers had no obligation to conform to a higher standard than other lawyers. Do you agree?
2.What are the obligations of government lawyers who are political appointees and how, if at all, are they different from career lawyers? Are appointees permitted to show special deference to the President who appointed them?
3.Should lawyers who advise governmental officials in a nonlegal capacity nonetheless be held to account for violations of professional duties? This was the question put to D.C. Bar about Kellyanne Conway, who was appointed by President Trump as Counselor to the President in December 2016. In her Counselor capacity, Conway (who had been a pollster for Trump and then served as his presidential campaign manager) was assigned the job of publicly defending the president in relation to all manner of policy disputes, which she did with flair that drew close to, and sometimes crossed, the line of truthfulness. To give just one example, in defending Trump’s Muslim Ban, Conway claimed it was similar to an Obama decision to “ban” Iraqi refugees for six months following the “Bowling Green Massacre.” The problem was, Obama never banned Iraqi refugees (he only ordered enhanced screening), and there was never any “massacre” in Bowling Green, only the prosecution of two Iraqis for trying to send weapons and money to al-Qaeda.109 Because of Conway’s numerous misrepresentations, in February 2017, fifteen legal ethicists filed a complaint with the D.C. Bar alleging that Conway, licensed in D.C., should be sanctioned for violating Rule 8.4(c), which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”110 The ethicists then amended the complaint in 2019 based on further evidence that Conway had violated the Hatch Act by engaging in partisan political activity. Assuming Conway did lie on Trump’s behalf, how do you think the Bar should rule on the question of whether a lawyer should be subject to discipline for a Rule 8.4(c) violation while acting as a nonlegal presidential advisor?111
Case Study: The “Torture” Memos
The materials that follow explore the nature of the government lawyer’s counseling role through a case study: the role of executive 672branch lawyers in the “war on terrorism.” The term “torture memos” refers to six legal opinions written by lawyers in the DOJ’s Office of Legal Counsel (OLC) in 2002, 2004, and 2005. Five of the six torture memos were initially secret, but all of them were eventually released to the public.112
The first two, both dated August 1, 2002, were signed by Jay S. Bybee (the head of OLC and now a Ninth Circuit judge) but actually written by an OLC lawyer, John Yoo (now a Berkeley professor), together with a more junior lawyer. One of them analyzed the applicability of the federal torture statutes to the interrogation of Al Qaeda detainees. The statutes read as follows:
18 United States Code § 2340 (“Definitions”)
As used in this chapter—
(1)“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2)“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A)the intentional infliction or threatened infliction of severe physical pain or suffering;
(B)the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C)the threat of imminent death; or
(D)the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
18 United States Code § 2340A (“Torture”)
(a)Offense.—Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
The Bybee/Yoo memo concluded that harsh interrogation would not constitute “torture” unless it inflicted physical pain equivalent to that 673associated with organ failure or death, and that mental suffering would not be “torture” unless it produced psychiatric symptoms that lingered for months or years. (The “organ failure or death” standard of severe pain was derived from a Medicare statute that entitles patients to emergency medical care if they experience severe pain.) The memo also concluded that government officials accused of torture could avail themselves of the criminal defenses of self-defense and necessity, and that it would be an unconstitutional infringement on the President’s commander-in-chief authority to enforce the torture statutes against those inflicting presidentially-authorized torture.
This first, and most famous, torture memo was leaked shortly after the Abu Ghraib scandal, in which U.S. soldiers photographed themselves abusing captives in an Iraqi prison. The memo caused enough of an uproar that DOJ withdrew it. Among its defenders were Professors Eric Posner and Adrian Vermeule. To Posner and Vermeule, “the memorandum’s arguments are standard lawyerly fare, routine stuff.”113 They explain:
The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally been highly pro-executive. . . . Not everyone likes OLC’s traditional jurisprudence, or its awkward role as both defender and adviser of the executive branch; but former officials who claim that the OLC’s function is solely to supply “disinterested” advice, or that it serves as a “conscience” for the government, are providing a sentimental, distorted and self-serving picture of a complex reality.114
John Yoo, they add, belongs to “a dynamic generation of younger scholars . . . who argue for an expansive conception of presidential power over foreign affairs.”115
Most other commentators were highly critical. Focusing particularly on the interpretation of “severe pain” in the criminal law of torture by drawing on a Medicare statute, Princeton Professor Peter Brooks labeled the memo “textual interpretation run amok—less ‘lawyering as usual’ than the work of some bizarre literary deconstructionist.”116 New York Times editorialist Anthony Lewis, focusing on the memo’s discussion of self-defense and necessity, claimed that the memo “read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison.”117
674The second memo of August 1, 2002, also written by Yoo and signed by Bybee, was not leaked at the time but was eventually released by the Obama administration. It analyzes and specifically approves ten harsh interrogation techniques including waterboarding and sleep deprivation of up to eleven days.
Because of the uproar over the first torture memo, OLC substituted another memo released to the public at the end of 2004. It was written by OLC’s then-head, Daniel Levin. The memo withdrew, but did not replace, the Bybee/Yoo memo’s analysis of the criminal defenses and the president’s commander-in-chief power—Levin argued that because of President Bush’s stated policy against torture it was unnecessary to reach these issues. It also withdrew the “organ failure or death” test, which it viewed as a logical blunder.
In May 2005, Levin’s successor at OLC, Steven Bradbury, issued three confidential opinions, which were not released until 2009, although newspapers had reported on their contents. One re-analyzed the CIA’s techniques of “enhanced” interrogation—by this time the number was up from ten to thirteen—and concluded that none of them constitutes torture. The second concluded that even if they are used together, the cumulative result would still not be torture. And the third concluded that the “enhanced” techniques, taken singly or together, do not even rise to the lesser level of cruel, inhuman, or degrading treatment short of torture.
On his first day in office, President Barack Obama banned abusive interrogations and prohibited government agents from relying on the torture memos; subsequently OLC withdrew them.118 Although President Donald Trump vowed during his election campaign to reverse this decision, a draft executive order to that effect was never issued, so, as this book goes to press, the ban remains in effect.119
The interrogation techniques ultimately approved by the OLC “torture memos” include the following (excerpted from one of the Bradbury memos):
Nudity . . .
Cramped confinement. This technique involves placing the individual in a confined space, the dimensions of which restrict the individual’s movements. The confined space is usually dark. . . . For the larger confined space, the individual can stand up or sit down; the smaller space is large enough for the subject to sit down. Confinement in the larger space may last no more than 8 hours at a time for no more than 18 hours a day for the 675smaller space, confinement may last no more than two hours. . . .
Stress positions . . . The three stress positions are (1) sitting on the floor with legs extended straight out in front and arms raised above the head, (2) kneeling on the floor while leaning back at a 45 degree angle, and (3) leaning against a wall generally about three feet away from the detainee’s feet, with only the detainee’s head touching the wall, while his wrists are handcuffed in front of him or behind his back. . . .
Water dousing. Cold water is poured on the detainee either from a container or from a hose without a nozzle. . . . To ensure an adequate margin of safety, the maximum period of time that a detainee may be permitted to remain wet has been set at two-thirds the time at which . . . hypothermia could be expected to develop in healthy individuals. . . .
Sleep deprivation (more than 48 hours). . . . The primary method of sleep deprivation involves the use of shackling to keep the detainee awake. In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body. . . . The detainee’s feet are shackled to a bolt in the floor. . . . All of the detainee’s weight is borne by his legs and feet during standing sleep deprivation. You have informed us that the detainee is not allowed to hang from or support his body weight with the shackles. . . . If the detainee is clothed, he wears an adult diaper under his pants. Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper. . . . The maximum allowable duration for sleep deprivation authorized by the CIA is 180 hours, after which the detainee must be permitted to sleep for at least eight hours. You have informed us that to date, more than a dozen detainees have been subjected to sleep deprivation of more than 48 hours, and three detainees have been subjected to sleep deprivation of more than 96 hours; the longest period of time for which any detainee has been deprived of sleep by the CIA is 180 hours.
The “waterboard.” . . . 120
All these techniques were approved for use on high-value detainees in the CIA’s secret “black site” foreign prisons. However, harsh interrogation techniques were also used on detainees at Guantánamo. An Army report found that one high-value detainee had been exposed to “degrading and abusive treatment [that] did not rise to the level of 676inhumane treatment.” This detainee, not identified by name in the report, was later determined to be Mohammed Al Qahtani. Qahtani was interrogated 20 hours a day for 48 days out of 54, with time off to be hospitalized when he exhibited irregular heartbeat. He was also subjected to sexual humiliation tactics. Eventually, the head of U.S. military commissions at Guantánamo refused to prosecute him because she concluded that his treatment amounted legally to torture.
This problem describes a meeting at Guantánamo in which decisions to “go tough” on Qahtani were made.121 The following excerpt comes from the minutes of a 2002 meeting at Guantánamo Bay Naval Base to discuss interrogation techniques. It was released by the Senate Judiciary Committee. Two of the ten participants were lawyers: One was Staff Judge Advocate to the task force commander at Guantánamo, while the other was assistant general counsel to the CIA and chief counsel to the CIA’s counterterrorism center. The other participants were military and intelligence officers. Nine days after this meeting, the Staff Judge Advocate provided a legal memorandum that approved more than a dozen aggressive interrogation techniques, including stress positions, sleep deprivation, intimidation through the use of military working dogs, forced nudity, isolation, and the “wet towel” technique (a technique similar to waterboarding).122 Many of these techniques were used on Guantánamo detainees.
a)As you read this excerpt, consider the nature of the lawyers’ comments. To what extent are the lawyers providing legal advice? Moral or other advice? Policy recommendations? Do any of their comments exceed the role of a legal advisor?
b)Consider an email from Mark Fallon, deputy commander of the Criminal Investigation Task Force of the Department of Defense (DOD), reproduced below directly following the minutes of the meeting. Do you agree with the concerns Fallon presents?123
For purposes of this problem, we identify the staff judge advocate as JAG and the CIA lawyer as CIA counsel. An officer is identified as Colonel, and a representative of the Defense Intelligence Agency is identified as DIA rep. Ten persons were present at the meeting.
677Counter Resistance Strategy Meeting Minutes 124
The following notes were taken during the aforementioned meeting at 1340 on October 2, 2002. All questions and comments have been paraphrased: . . .
Colonel: We can’t do sleep deprivation.
JAG: Yes we can—with approval. . . .
JAG: We may need to curb the harsher operations while ICRC [the International Committee of the Red Cross] is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD [Department of Defense].
DIA rep: We have had many reports from Bagram [a U.S. base in Afghanistan] about sleep deprivation being used.
JAG: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention. . . .
CIA counsel: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has “moved” them away from the attention of ICRC. Upon questioning from the ICRC about their whereabouts, the DOD’s response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques against less than a handful of suspects since 9/11.
Under the Torture Convention, torture has been prohibited under international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical. Severe physical pain described as anything causing permanent physical damage to major organs or body parts. Mental torture described as anything leading to permanent, profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you’re doing it wrong. . . . Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. The CIA operates without military intervention. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theatre. In those rare instances, aggressive techniques have proven very helpful.
JAG: We will need documentation to protect us.
CIA counsel: Yes, if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental. Everything must be approved and documented.
678DIA rep: LEA [law enforcement agency] personnel will not participate in harsh techniques.
JAG: There is no legal reason why LEA personnel cannot participate in these operations. . . . LEA choice not [to] participate in these types of interrogations is more ethical and moral as opposed to legal.
CIA counsel: The videotaping of even totally legal techniques will look “ugly.” . . . The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.
JAG: Does SERE employ the “wet towel” technique?125
CIA counsel: If a well-trained individual is used to perform this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia). . . .
JAG: In the BSCT [Behavioral Science Consultation Team] paper it says something about “imminent threat of death”. . . .
CIA counsel: The threat of death is also subject to scrutiny, and should be handled on a case by case basis. Mock executions don’t work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book.
DIA rep: I like the part about ambient noise. . . .
Meeting ended at 1450.
* * *
The approval of the harsh techniques drew some internal criticism at the Department of Defense. Noteworthy is the following email from Mark Fallon, the deputy commander of DOD’s Criminal Investigation Task Force.
From: Fallon Mark
Sent: Monday, October 28, 2002
To: McCahon Sam
Sam: . . .
This looks like the kinds of stuff Congressional hearings are made of. Quotes from [the JAG] regarding things that are not being reported give the appearance of impropriety. Other comments like “It is basically subject to perception. If the detainee dies you’re doing it wrong” and “Any 679of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents” seem to stretch beyond the bounds of legal propriety. Talk of “wet towel treatment” which results in the lymphatic gland reacting as if you are suffocating, would in my opinion shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.
R/Mark Fallon
Deputy Commander
Criminal Investigation Task Force [Department of Defense]
1.Is there anything ethically improper in the conduct of the lawyers identified as “JAG” and “CIA counsel”?
2.Shortly after the release of the Bybee Memo in 2004, critics began to question the legal ethics of writing memoranda that seemingly gave the green light to torture. It was often unclear whether the critics objected to the conclusions of the Bybee Memo on moral grounds, because they were opponents of torture, or whether they objected on the ground that writing the opinion violated formal ethics rules. These are not mutually exclusive, but the two criticisms are fundamentally different. The former criticism would be the same no matter what the law said. Even if the plain language of the law explicitly approved torture, moralists might argue that lawyers should refuse to put their imprimatur on torture. The latter criticism is that the OLC lawyers did not interpret the law honestly in their written opinions to their clients. That could violate several rules of legal ethics. In the Rules of Professional Conduct these are:
Rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”
Rule 1.2(d): “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. . . .”
Rule 1.4(b): “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Rule 8.4(c): “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
3.Beginning in 2004, the DOJ’s internal ethics unit, the Office of Professional Responsibility (OPR), launched an investigation of the Bybee Memo, examining email traffic and earlier drafts. OPR completed a lengthy report in 2008, which Attorney General Holder sent to a senior DOJ lawyer, David Margolis, for review. The OPR report was harshly critical of Judge Bybee and Professor Yoo, and recommended that they be referred to their state bars for possible professional discipline for violating their “duty to 680exercise independent legal judgment and render thorough, objective, and candid legal advice” in contravention of Rule 2.1.
However, Margolis disagreed, criticized the OPR report, and concluded instead that Bybee and Yoo had merely exercised bad judgment—a recommendation that Attorney General Holder decided to follow. In February 2010, the DOJ released the OPR Report, surrounding documents, and Margolis’s critique.
For the interrogation memos to violate ethics rules, it seems that the lawyers must know that the advice in the opinions is a misrepresentation of the law—or at least must have written their opinions believing that they do not faithfully represent the law. How would one know that or prove it? What if the lawyer responds, “I believe what I wrote”?
4.Is the critique that the legal analysis is so untenable that intelligent, capable lawyers could not have written it in good faith? How do you tell when a legal argument is frivolous (as opposed to merely being an argument you disagree with)? What if other scholars disagree that the opinions are frivolous? In testimony to the Senate Judiciary Committee, Professor Michael Stokes Paulsen, a noted scholar and former OLC lawyer, strongly defends the memoranda:
I have studied the legal memoranda in question, drawing on my expertise as a legal scholar whose work over much of the past decade has embraced these types of issues as a major area of research and writing, and on my experience as a government attorney in OLC in the late 1980s and early 1990s. The analysis contained in the memoranda in question is analysis with which, in certain respects, persons of good will can reasonably disagree, but it is well within the range of customary, legitimate, proper, and entirely ethical legal advice that may be provided by confidential legal advisors to the president and his administration.126
At the same Senate hearing, Professor Luban disagreed:
Twenty-six years ago, President Reagan’s Justice Department prosecuted law enforcement officers for waterboarding prisoners to make them confess. The case is called United States v. Lee.127 Four men were convicted and drew hefty sentences that the Court of Appeals upheld.
The Court of Appeals repeatedly referred to the technique as “torture.” This is perhaps the single most relevant case in American law to the legality of waterboarding. Any lawyer can find the Lee case in a few seconds on a computer just by typing the words “water torture” into a database. But the authors of the torture memos never mentioned it. They had no trouble finding cases where courts didn’t call harsh interrogation techniques “torture.” It’s hard to avoid the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury 681chose not to mention the Lee case because it casts doubt on their conclusion that waterboarding is legal. . . .
Other significant omissions include the failure of the August 1, 2002 “torture” memo to discuss or even mention the Steel Seizure Case in its analysis of the President’s commander-in-chief power. . . . In its discussion of the necessity defense, the Bybee Memo fails to mention the recently-decided United States v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001), which calls into question whether federal criminal law even contains a necessity defense if no statute specifies that there is one. . . . In one place, the opinion may fairly be said to falsify what a source says. Discussing whether interrogators accused of torture could plead self-defense, the memo says: “Leading scholarly commentators believe that interrogation of such individuals using methods that might violate [the anti-torture statute] would be justified under the doctrine of self-defense.” The opinion refers to a law review article. What the article’s author actually says on the page cited is nearly the opposite: “The literal law of self-defense is not available to justify their torture. But the principle uncovered as the moral basis of the defense may be applicable” (emphasis added). Omitting to discuss leading contrary cases, and spinning what cited sources say, is not honest opinion writing, and violates the ethical requirements of candor and independent judgment, and communication to a client of everything reasonably necessary for the client to make an informed decision.128
Are these sufficient grounds to conclude that the OLC lawyers did not argue in good faith?
5.If a client asks a lawyer to write an opinion setting out the strongest argument possible favoring the legality of what the client wants to do, can the lawyer do so, or does Rule 2.1 require the lawyer to provide only a candid and independent opinion? Does Rule 1.2(c) bear on the question? It provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
What if the client doesn’t explicitly ask for a permissive opinion, but the lawyer knows that that is what the client wants? (Note that the OLC lawyers did not claim to be providing the strongest argument in favor of torture. The August 1, 2002 “techniques” memo states, “We wish to emphasize that this is our best reading of the law,”129 while Mr. Bradbury describes his May 10, 2005 “techniques” memo in similar terms: “the legal standards we apply in this memorandum . . . constitute our authoritative view of the legal standards applicable under [the torture statutes].”)130
6826.In an interview with former President George W. Bush following the publication of his memoir, television commentator Matt Lauer asked: “Why is waterboarding legal in your opinion?” Bush responded: “Because the lawyer said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.” When Lauer (later disgraced by revelations of sexual abuse) then asked whether it would be “okay for a foreign country to waterboard an American citizen?” Bush replied, “It’s all I ask is that people read the book.”131 Does Bush’s stated reliance on lawyers affect your views of the gravity of conduct by Yoo and Bybee?
D.Practicing Law Within an Organization
Over half of lawyers in private practice work in firms with other lawyers. In addition, as the preceding discussion highlighted, another roughly 15 percent work in-house for a private corporate or governmental employer—work that also typically involves practicing with other lawyers in a group. In this part, we examine a particular challenge associated with group practice settings: the responsibilities of senior lawyers to supervise their junior colleagues and the degree to which junior lawyers may defer to their senior colleagues’ resolution of ethical issues.
1.Ethical Duties of Supervisory and Subordinate Lawyers
The Rules summarize the allocation of responsibility between supervisors and subordinates in Rule 5.1, “Responsibilities of a Partner or Supervisory Lawyer,” and Rule 5.2, “Responsibilities of a Subordinate Lawyer.”
Rule 5.1 specifies:
(a)A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b)A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c)A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1)the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
683(2)the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
As for the individual accountability of subordinate lawyers, Rule 5.2(a) provides that “[a] lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Subpart (b) states, however: “A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” Thus, subordinate lawyers could be excused from disciplinary liability if a supervisor made a reasonable but incorrect judgment about their ethical responsibilities.132 Consider these rules in relation to the lawyers’ conduct in the Berkey-Kodak case that follows.
Steven Brill, “When a Lawyer Lies”
Esquire 23–24 (Dec. 19, 1979).
Eighteen months ago, Joseph Fortenberry, Harvard College ’66 and Yale Law ’69, was on the perfect big-time lawyer’s career path. At thirty-three, he had a federal court of appeals clerkship under his belt and was a senior associate at the New York law firm of Donovan Leisure Newton & Irvine working on the all-important antitrust case that Kodak was defending against Berkey Photo.
His prospects for being made a partner at the prestige firm the following year were excellent: He was regarded not only as brilliant but also as engaging and enjoyable to work with; Kodak was the firm’s biggest case (occupying twenty lawyers full time, with gross billings of some $4 million a year); and he was working hand in hand with Mahlon Perkins Jr., one of the firm’s most respected partners.
Then came April 20, 1977. That morning, in the middle of one of hundreds of depositions (on-the-record question-and-answer sessions with a witness prior to the trial) that he had sat through for months, Joe Fortenberry’s career unraveled.
Alvin Stein, the lawyer for Berkey Photo, was questioning a Kodak “expert witness,” Yale economics professor Merton Peck, about files and other materials the professor had received from Kodak in order to prepare his testimony. In such suits, each side is allowed to obtain—or “discover”—almost any documents that the other side has used to 684prepare and bolster its case. Such materials can often be used to attack the credibility of witnesses.
Peck told Berkey lawyer Stein that he had shipped all the materials back to Perkins of Donovan Leisure earlier that year. What happened, then, to the documents, Stein asked Perkins. I threw them out as soon as I got them, the Donovan Leisure partner replied.
Perkins was lying. He’d saved all the documents in a suitcase, frequently taking them back and forth between his office at the firm and a special office he’d leased near the federal courthouse for the trial. And Joe Fortenberry, sitting at Perkins’s side during this deposition, knew his boss was lying. He’d worked with the suitcase full of documents, and at least once he’d carried it between Perkins’s two offices. Two weeks later, Perkins submitted a sworn statement to the court confirming he’d destroyed the documents.
In January of 1978, Perkins’s perjury came to light when Stein, at the end of the Berkey-Kodak trial, asked Peck about any reports he had submitted prior to the trial to Kodak’s lawyers. This led back to more probing questions about the materials Peck had used to prepare his testimony. Then—in what has since become a much-reported, pinstriped soap opera—on the Sunday night before the last week of the trial, a frightened Perkins broke down and confessed to Kodak lead lawyer John Doar that he’d never destroyed the documents but had actually hid them in a cupboard in his office. Perkins told the judge the next day, then resigned from the firm; Stein used Donovan Leisure’s withholding of documents to help convince the jury of Kodak’s bad faith and guilt; Kodak lost the case in a spectacular $113 million verdict (since reduced to $87 million); Kodak dropped Donovan Leisure; and Perkins was convicted of contempt of court for his perjury and sentenced to a month in prison.
But what about Joe Fortenberry?
The rules by which the bar disciplines lawyers—the Code of Professional Responsibility—require that “a lawyer who receives information clearly establishing that . . . a person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.” Moreover, the code requires that a lawyer who knows that another lawyer has engaged in dishonesty, deceit, or misrepresentation must report the offending lawyer to proper prosecutorial authorities.
In short, Fortenberry was obligated to speak up when Perkins lied. Instead, he said nothing to anyone. To be sure, Perkins, perhaps thinking he was helping Fortenberry, told the federal prosecutors who later investigated the case that Fortenberry had whispered in his ear and reminded him of the existence of the documents when Perkins told Stein he’d destroyed them. Fortenberry denies this. What’s undisputed, and more relevant, is that Fortenberry never said a word about Perkins’s lie 685to the judge, as he was obligated to, or even to any other Donovan Leisure partner.
Throw the book at him, right? Wrong. Law firms teach young associates that they are apprentices to the partners, not whistle blowers. The partners, after all, are supposed to be the ones with the experience and standing to make decisions about right and wrong. Fortenberry had worked for Perkins for more than six months. In an environment like Donovan Leisure, this means that he respected the fifty-nine-year-old “Perk,” as his admiring partners called him, for the well-liked senior litigator that he was. It also means that he was intimidated by Perkins and, of course, that he knew Perkins was his ticket to a partnership when the firm partners would decide in the following year which of the associates at Fortenberry’s level would be offered that golden prize. “What happened to Joe” says a close associate “was that he saw Perk lie and really couldn’t believe it. And he just had no idea what to do. I mean, he knew Perkins was lying, but he kept thinking that there must be a reason. Besides, what do you do? The guy was his boss and a great guy!”
As stung as Donovan Leisure is by the Perkins affair, the firm’s partners have treated Fortenberry with the compassion that suggests that they understand his dilemma. They’ve paid for him to retain his own lawyer for the investigation that resulted in Perkins’s guilty plea and for possible bar association disciplinary action. (Federal prosecutors say there’s no evidence of criminal misconduct on Fortenberry’s part, but the Association of the Bar of the City of New York never comments on its own investigations regarding possible violations of the Lawyers Code of Professional Responsibility, even to the point of acknowledging whether there is one going on.) And they’ve kept him on at the firm and gone out of their way with signs ranging from work assignments to lunch invitations to show that they hold him blameless. In many ways, it hasn’t helped. Friends say that Fortenberry—“a well-liked, personable genius,” as one puts it—has been severely hurt emotionally by the Perkins episode. “He just looks and acts like a beaten man,” as another associate explained.
There’s one thing that Donovan Leisure could do to revive Fortenberry. They could make him a partner this June, when the decision on partners of his seniority is normally made. The odds are he’d have been made a partner had the Perkins affair never happened; so if, as Samuel Murphy of the firm’s management committee told me recently, “in judging Joe for partnership, we’re not going to hold the tragedy with Perk against him in any way,” it stands to reason that he will get the offer. Then again, how does Donovan Leisure look, its reputation already hurt by the Perkins affair, offering a partnership to the man who apparently violated the Code of Professional Responsibility and kept quiet while Perkins perpetrated his fraud on the court?
With Donovan Leisure beginning to recover from the Perkins affair . . . the upcoming decision on what to do with Fortenberry may be the one 686last hurdle they have to pass. (A once-feared malpractice suit by Kodak is now unlikely, a source at the camera maker says.)
But there are larger questions, too, that Fortenberry’s sad situation should raise. Donovan Leisure senior partner Murphy says that “the firm is trying to create an atmosphere in which associates in positions like Fortenberry’s will feel free to take the story of one partner acting improperly to another partner.” But Perkins’s impropriety—a clear, deliberate lie—is an easy call. What about an associate who thinks his partner is filing a frivolous motion or is bilking a client? “You know, when you come to work at a big firm you do give up independence,” Murphy concedes. “And a young lawyer’s ideas about what is frivolous, for example, can’t always be accepted, though we do encourage them to tell the partners they’re working for what they think.”
And what about firms other than Donovan Leisure that haven’t been clubbed by a Perkins disaster into thinking about “open doors” and the like? I asked eight different associates, ages twenty-seven to thirty-two, at major firms around the country what they’d do in Fortenberry’s situation. None said that they’d speak up to the judge in the case as their Code of Professional Responsibility requires; only four suggested that there was another partner at the firm they’d feel free to go to if their boss did something like that; and one told a story of watching a partner bill a client (a major utility) for three times the hours worked and, not knowing what to do, doing nothing.
Judge Marvin E. Frankel, the trial judge in the Berkey-Kodak case, was highly critical of Donovan Leisure’s conduct during the trial and so outraged by Perkins’s lie that he personally called it to the attention of the federal prosecutors. Frankel has since left the bench and become a partner at the midtown firm of Proskauer Rose Goetz & Mendelsohn. An associate there told me last week he’d “have no idea” what to do in a Perkins situation. “There isn’t any way for an associate to handle that problem,” Frankel concedes. Yet, unexplainably, the once-outraged judge shifts the direct responsibility from the individual law firms, where it belongs, to the organized bar generally: “All firms, including this one, should push the bar association to evolve procedures so that an associate doesn’t have to be a hero to do what’s ethical.”
Every year more and more of the best brains in our society go from law school to firms like Donovan Leisure. And every year these firms get larger—and more competitive. Without some real effort from those at the top, this is an environment that is destined to make automatons out of those who get by and tragedies out of those, like Fortenberry, who have the bad luck to get tripped up.
Assume the facts are as described above in the Berkey-Kodak case. Consider the following questions.
687a)You are an associate with Donovan Leisure, a prominent New York law firm. For the past two years, you have worked principally for one senior partner on a large antitrust suit brought by Berkey Photo against your client, Eastman Kodak. One of the major issues in the suit concerns whether Kodak’s acquisitions of early competitors or its superior product innovations were the primary cause of its dominant market position. In connection with that issue, Kodak has retained a highly regarded Yale economics professor to study the photography industry in the hope that he will develop an expert opinion that Kodak’s innovations, rather than its acquisitions, enabled it to attain dominance. Ultimately, the professor does develop such a theory. However, in one early letter to the senior partner, the expert indicates he is unable to explain how Kodak’s early acquisitions could be irrelevant to its present market position.
This letter and certain documents reviewed by the economist have not been produced in response to Berkey’s discovery demand for all such documents and for “interim reports” prepared by the economist. The partner in charge of the case has executed an affidavit under oath stating that he inadvertently destroyed the documents, believing them to be duplicates of material still available. The partner also privately maintains that he does not consider the economist’s correspondence to be a “report” within the meaning of the discovery demand.
You find that interpretation contrived, and you try unsuccessfully to convince the partner that the expert’s preliminary expression of doubt is precisely the sort of interim statement that Berkey is seeking for cross-examination purposes. At the very least, you believe the trial court should be asked to rule on the question. You also know that the documents have not been destroyed, although they reveal nothing of critical substantive value to Berkey. You greatly respect the senior partner and are at a loss to explain his behavior. What is your response?
b)Assume that you describe the situation to another senior partner whose opinion you value. He expresses doubt that the facts could be as you describe them. He points out that, if it were the case, the partner had suppressed evidence and lied under oath, and if the deception became public, that man’s life would be ruined, and the firm’s reputation would be tainted. In addition, the partnership could lose a major client and be subject to a multi-million-dollar malpractice suit. What do you do?
c)Assume that before you take any action, Berkey makes a settlement offer that Kodak is willing to accept. Does that alter your plans?
d)Assume you are a member of the New York Bar Disciplinary committee, to whom the matter has been referred. What, if any, disciplinary action do you recommend for the attorneys involved?
688e)Assume you are a member of the firm’s management committee. You have worked with the attorneys whose conduct is now open to question, and, prior to this incident, you had respect and affection for all those involved. What action do you believe the firm should take with respect to those individuals? If Kodak had not lost the trial and left the firm, would that affect your decision?133
References: Rules 3.3, 3.4, 5.1, 5.2, 8.3, 8.4.
1.According to case histories of the litigation, the perjury in Perkins’s affidavit became public as a result of his own disclosure, first to fellow partner John Doar and then to the court. The existence of the expert’s early correspondence emerged after cross-examination when Berkey’s counsel asked him whether there were any documents “on this matter” prepared prior to a given date. When the expert responded by seeking a definition of “on this matter,” counsel for Berkey pursued the issue and district Judge Frankel compelled the letter’s disclosure.134
In his summary to the jury, counsel made the most of the incident:
That sordid spectacle of dissembling, evasiveness, deception, and concealment disgraces the dignity of this court, this proceeding, and you jurors. And there is no doubt, I believe, based upon the evidence presented to you, and the conclusions to be drawn from that evidence, that the witness deliberately and purposefully concealed material evidence, and—I think it has got to be said—lied to you under oath. Not once, repeatedly. [The expert] has proven himself utterly unworthy of belief.135
Judge Frankel also made clear his own dissatisfaction with Donovan Leisure’s performance. He began by noting that Perkins had executed his false affidavit in response to his partner’s request for something stronger that would “satisfy” the court as to why documents could not be produced. Frankel then questioned whether it was sufficient “for Mr. Perkins’ partners to demand more positiveness or whether it wasn’t incumbent on everyone concerned to press Mr. Perkins more vigorously than he appears to have been pressed for the truthful account we received so many months later.” As for the failure to disclose the expert’s early letter, Frankel questioned why lead counsel John Doar “did not see fit to let me look at the document,” and added:
All of those things it seems to me reflect—and I have said it in just words of one or two syllables—a kind of single-minded interest in winning, winning, winning, without the limited qualification of that attitude that the Court, I think, is entitled to expect and which 689I feel must have infected Perkins and has infected certain aspects of this case from time to time in ways that I find upsetting.136
A week after the jury awarded Berkey a total of $113 million in damages, Kodak announced that Sullivan & Cromwell was taking over the litigation. On appeal, the Second Circuit reversed and remanded the lower court judgment. Kodak eventually settled the case for $6.75 million. Donovan Leisure paid $675,000 to Kodak to prevent a malpractice claim for failure to turn over documents.137 John Doar, who was widely criticized by Donovan Leisure colleagues for his “cold, distant, and morally arrogant manner” and his ineffective supervision of the Kodak litigation, resigned from the firm. According to James Stewart’s case history:
Fortenberry’s role in the scandal had nothing to do with his failure to be made a partner. The firm had actually passed him over two months before the Perkins matter ever came to light, partners there say. It later concealed its decision so as to enhance Fortenberry’s chances of getting another job, keeping him working so that prospective employers would not see his immediate dismissal from the firm and conclude that Fortenberry was indeed implicated in Perkins’s wrongdoing. Even so, Fortenberry was not hired by any private law firm to which he applied for a job.
Perkins emerged relatively well. Although he served twenty-seven days in jail for contempt of court, he was never disbarred. Subsequently he traveled extensively, taught English in Japan, and served as president of his local orchestra. One of his former partners described him as “happier, I believe, than he had been as a practicing lawyer.”138
In the mid-1980s, the then-sixty-five-year-old Perkins began working as a volunteer at the Center for Constitutional Rights, a prominent public interest law firm. “Intellectually, the work here is every bit as satisfying as what I did before,” he told a New York Times reporter. “And politically, I derive a lot more satisfaction than I did at Donovan, Leisure. I’m helping in causes I believe in very deeply. This wasn’t a very good way to have gotten out, but at this point, I’m very happy not to be there, and very happy to be here.”139
2.What implications can be drawn from the Berkey-Kodak case for the structure of law firms and content of ethical rules? Does Rule 5.2 provide adequate guidance for associates?
3.How much would it have helped if the firm had a designated ethics counsel who would be available to resolve the dilemma? According to one study, the majority of associates working in firms with over 100 lawyers report that their firm has such a counsel or a committee tasked with 690providing guidance on ethics inquiries.140 Can firms create better formal or informal channels of communications regarding ethical issues? What might have encouraged Fortenberry to disclose Perkins’s conduct to other partners in the firm at a point when the affidavit could have been withdrawn without major scandal?
4.If a firm does assign a partner or partners to serve as formal ethics counsel and the firm encourages lawyers to seek the ethics counsel’s advice, should associates be subject to formal or informal sanctions for failure to do so?
5.Recall that Rule 5.1(a) makes partners in a law firm responsible for ensuring that the firm’s policies give “reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.” How stringently should it be applied? Consider the following situation. Law firm B is well-known for its extremely aggressive litigation tactics, which sometimes have led to sanctions under Rules 11 and 26 of the Federal Rules of Civil Procedure. In one recent high-stakes case, after repeated complaints by opposing attorneys that the firm’s lawyers resisted legitimate discovery requests, the trial judge rebuked the supervising partner. Afterwards, the abusive tactics became more subtle but did not stop. As the partner privately explains, “delay is worth a great deal to the firm.” Should the partner be subject to discipline under Rule 3.2? Should any other lawyers in the firm be subject to discipline under Rule 5.1(a)? Should firms as entities be subject to discipline under a theory of respondeat superior?
6.What are lawyers’ duties to supervise nonlawyers? Rule 5.3(a) states that “a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the [nonlawyer’s] conduct is compatible with the professional obligations of the lawyer.” Under Rule 5.3(b), a lawyer with direct supervisory authority “shall make reasonable efforts” to ensure that the nonlawyer’s “conduct is compatible with the professional obligations of the lawyer.” Under Rule 5.3(c), a lawyer is held responsible for conduct of the nonlawyer if the lawyer orders or ratifies the nonlawyer’s conduct or the lawyer has managerial authority at the firm or direct supervisory authority over the nonlawyer and “knows of the conduct at the time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
What happens if the supervisory lawyer does not have direct knowledge of a nonlawyer’s misconduct? In the Georgia case, In re Hawk, a lawyer, Victor Hawk, ran his own small law firm practice.141 In 2007, Hawk hired a paralegal, Richard Lee Owen, without running a background check. It turned out that Owen “had been convicted of several felonies, including the transportation of stolen vehicles, burglary, forgery in the first degree, theft by deception, and theft by conversion.” Over time, Owen was promoted to 691office manager, where he had access to law firm finances, which he used to embezzle nearly $600,000 in client funds over the course of three years.
Although Hawk claimed he had no knowledge of Owen’s actions or his checkered history, Hawk was nonetheless publicly reprimanded by the U.S. District Court in Georgia for negligent supervision in violation of Rule 5.3(a) and (b). In so doing, the court emphasized that Hawk delegated responsibilities to Owen, which included preparing disbursement sheets for client settlements and rubber-stamping Hawk’s name on settlement checks. Because of this and the fact that Hawk “failed to thoroughly scrutinize and audit his trust account,” the court found that, even though Hawk “may not have been aware of the embezzlement at the time, he is culpable for the broad grant of authority and complete autonomy he gave to Mr. Owen.” Hawk could not escape sanction based on lack of knowledge because “his failure to supervise contributed to the lack of knowledge” in the first instance. Do you think this is an appropriate reading of Rule 5.3? What specifically should Hawk have done to avoid professional discipline?
7.As Chapter 3 notes, New York and New Jersey are the only states that permit firms, as well as individual lawyers, to be disciplined for ethical and legal violations. Under what circumstances should a law firm be punished for lawyers’ misconduct? What sanctions are appropriate for firms?142
Under federal law, organizations can be charged with crimes committed by their employees in the actual or apparent scope of their duties. In 2006, the prominent plaintiffs’ firm of Milberg Weiss (currently Milberg LLP) was indicted because of illegal kickbacks partners paid to clients who would become named plaintiffs in class action suits.143 Several partners pled guilty to fraud and conspiracy charges.
2.Ethical Pressures on Junior Lawyers
Patrick J. Schiltz, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession”
52 Vanderbilt Law Review 871, 917–18 (1999).
Let me tell you how you will start acting unethically: It will start with your time sheets. One day, not too long after you start practicing law, you will sit down at the end of a long, tiring day, and you just won’t have much to show for your efforts in terms of billable hours. It will be near the end of the month. You will know that all of the partners will be looking at your monthly time report in a few days, so what you’ll do is pad your time sheet just a bit. Maybe you will bill a client for ninety minutes for a task that really took you only sixty minutes to perform. 692However, you will promise yourself that you will repay the client at the first opportunity by doing thirty minutes of work for the client for “free.” In this way, you will be “borrowing,” not “stealing.”
And then what will happen is that it will become easier and easier to take these little loans against future work. And then, after a while, you will stop paying back these little loans. You will convince yourself that, although you billed for ninety minutes and spent only sixty minutes on the project, you did such good work that your client should pay a bit more for it. After all, your billing rate is awfully low, and your client is awfully rich.
And then you will pad more and more—every two minute telephone conversation will go down on the sheet as ten minutes, every three hour research project will go down with an extra quarter hour or so. You will continue to rationalize your dishonesty to yourself in various ways until one day you stop doing even that. And, before long—it won’t take you much more than three or four years—you will be stealing from your clients almost every day, and you won’t even notice it.
You know what? You will also likely become a liar. A deadline will come up one day, and, for reasons that are entirely your fault, you will not be able to meet it. So you will call your senior partner or your client and make up a white lie for why you missed the deadline. And then you will get busy and a partner will ask whether you proofread a lengthy prospectus and you will say yes, even though you didn’t. And then you will be drafting a brief and you will quote language from a Supreme Court opinion even though you will know that, when read in context, the language does not remotely suggest what you are implying it suggests. And then, in preparing a client for a deposition, you will help the client to formulate an answer to a difficult question that will likely be asked—an answer that will be “legally accurate” but that will mislead your opponent. And then you will be reading through a big box of your client’s documents—a box that has not been opened in twenty years—and you will find a document that would hurt your client’s case, but that no one except you knows exists, and you will simply “forget” to produce it in response to your opponent’s discovery requests.
Do you see what will happen? After a couple of years of this, you won’t even notice that you are lying and cheating and stealing every day that you practice law. None of these things will seem like a big deal in itself—an extra fifteen minutes added to a time sheet here, a little white lie to cover a missed deadline there. But, after a while, your entire frame of reference will change. You will still be making dozens of quick, instinctive decisions every day, but those decisions, instead of reflecting the notions of right and wrong by which you conduct your personal life, will instead reflect the set of values by which you will conduct your professional life—a set of values that embodies not what is right or wrong, but what is profitable, and what you can get away with.
693David Luban, “The Ethics of Wrongful Obedience” in Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation
95–97, 102–03, 105 (Deborah L. Rhode, ed., 2001).
One of the best-known and most painful examples of [wrongful obedience by lawyers] was the Berkey-Kodak antitrust litigation in 1977, a bitterly contested private antitrust action brought by Berkey Photo against the giant of the industry. In the heat of adversarial combat, Mahlon Perkins, an admired senior litigator for the large New York law firm representing Kodak, snapped. For no apparent reason, he lied to his opponent to conceal documents from discovery, then perjured himself before a federal judge to cover up the lie. Eventually he owned up, resigned from his firm, and served a month in prison. Perhaps this sounds like an instance of chickens coming home to roost for a Rambo litigator. But by all accounts, Perkins was an upright and courtly man, the diametrical opposite of a Rambo litigator.
Joseph Fortenberry, the associate working for him, knew that Perkins had perjured himself but kept silent. “What happened . . . ” recalls another associate, “was that he saw [the partner] lie and really couldn’t believe it. And he just had no idea what to do. I mean, he . . . kept thinking there must be a reason. Besides, what do you do? The guy was his boss and a great guy!”
Notice the range of explanations here. First, the appeal to hierarchy: the guy was his boss. Second, to personal loyalty: the guy was a great guy. Third, to helplessness: Fortenberry had no idea what to do. Fourth, Fortenberry couldn’t believe it. He kept thinking there must be a reason. The last is an explanation of a different sort, suggesting that Fortenberry’s own ethical judgment was undermined by the situation he found himself in.
As a matter of fact, the same may be said of Perkins. He wasn’t the lead partner in the litigation; he belonged to a team headed by a newcomer to the firm, an intense, driven, focused, and controlling lawyer. In a situation of supreme stress, Perkins’s judgment simply failed him.
In Berkey-Kodak, neither Perkins nor Fortenberry received an explicit order to break the rules, but sometimes lawyers do. What guidance do the ethics rules give when this happens? ABA Model Rule 5.2(a) denies the defense of superior orders to a subordinate lawyer ordered to behave unethically, but Rule 5.2(b) states that a subordinate may defer to “a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” The problem is that the pressures on subordinate lawyers may lead them to misjudge when a question of professional duty is arguable and when the supervisor’s resolution of it is reasonable. Remember Fortenberry, who “kept thinking there must be a reason” when he heard Perkins perjure himself before a federal judge. This was not even close to an arguable question, and there’s nothing 694reasonable about perjury—but the very fact that it was Fortenberry’s respected supervisor who committed it undermined his own confidence that he understood what was reasonable and what was not. When that happens, Rule 5.2(b) will seem more salient to an associate than the bright-line prohibition on wrongful obedience that the first half of the rule articulates.
I want to see what we can learn about wrongful obedience from the most celebrated effort to study it empirically, Stanley Milgram’s experiments conducted at Yale thirty-five years ago. Even though these experiments are very well-known, I will begin by reviewing what Milgram did and what he discovered.
Imagine, then, that you answer Milgram’s newspaper advertisement, offering twenty dollars if you volunteer for a one-hour psychology experiment.144 When you enter the room, you meet the experimenter, dressed in a grey lab coat, and a second volunteer, a pleasant, bespectacled middle-aged man. Unbeknownst to you, the second volunteer is in reality a confederate of the experimenter.
The experimenter explains that the two volunteers will be participating in a study of the effect of punishment on memory and learning. One of you, the learner, will memorize word-pairs; the other, the teacher, will punish the learner with steadily-increasing electrical shocks each time he makes a mistake. A volunteer, rather than the experimenter, must administer the shocks because one aim of the experiment is to investigate punishments administered by very different kinds of people. The experimenter leads you to the shock-generator, a formidable-looking machine with thirty switches, marked from 15 volts to 450. Above the voltages labels are printed. These range from “Slight Shock” (15–60 volts) through “Danger: Severe Shock” (375–420 volts); they culminate in an ominous-looking red label reading “XXX” above 435 and 450 volts. Both volunteers experience a 45-volt shock. Then they draw lots to determine their role. The drawing is rigged so that you become the teacher. The learner mentions that he has a mild heart problem, and the experimenter replies rather non-responsively that the shocks will cause no permanent tissue damage. The learner is strapped into the hot seat, and the experiment gets underway.
The learner begins making mistakes, and as the shocks escalate he grunts in pain. Eventually he complains about the pain, and at 150 volts announces in some agitation that he wishes to stop the experiment. You look inquiringly at the man in the grey coat, but he says only, “The experiment requires that you continue.” As you turn up the juice, the learner begins screaming. Finally, he shouts out that he will answer no more questions. Unflapped, the experimenter instructs you to treat silences as wrong answers. You ask him who will take responsibility if the learner is injured, and he states that he will. You continue.
695As the experiment proceeds, the agitated learner announces that his heart is starting to bother him. Again, you protest, and again the man in the lab coat replies, “The experiment requires that you continue.” At 330 volts, the screams stop. The learner falls ominously silent, and remains silent until the bitter end.
But it never actually gets to the bitter end, does it? You may be excused for thinking so. In a follow-up study, groups of people heard the Milgram setup described. They were asked to guess how many people would comply all the way to 450 volts, and to predict whether they themselves would. People typically guessed that at most one teacher out of a thousand would comply—and no-one believed that they themselves would.
In reality, sixty-three percent of subjects complied all the way to 450 volts. Moreover, this is a robust result: it holds in groups of women as well as men, and experimenters obtained comparable results in Holland, Spain, Italy, Australia, South Africa, Germany, and Jordan; indeed, the Jordanian experimenters replicated the 65% result not only among adults but among seven-year-olds. Originally, Milgram had intended to run his experiments in Germany, to try to understand how so many Germans could participate in the Holocaust; his American experiments were merely for the purpose of perfecting his procedures. After the American dry run, however, Milgram remarked: “I found so much obedience, I hardly saw the need of taking the experiment to Germany.”
In my view, we should regard the underestimates of subjects’ willingness to inflict excruciating shocks on an innocent person as a finding just as important and interesting as the 65% compliance rate itself. The Milgram experiments demonstrate not only that in the right circumstances we are quite prone to destructive obedience, but also that we don’t believe this about ourselves, or about our neighbors—nor do we condone it. Milgram demonstrates that each of us ought to believe three things about ourselves: that we disapprove of destructive obedience, that we think we would never engage in it, and, more likely than not, that we are wrong to think we would never engage in it. . . .
The Milgram experiments place moral norms in conflict. One is what I will call the performance principle: the norm of obeying authority, coupled with the norm of doing your job. The other is the no-harm principle: the prohibition on torturing, harming, and killing innocent people. In the abstract, we might think, only a sadist or a fascist would subordinate the no-harm principle to the performance principle. But the Milgram experiments seem to show that what we think in the abstract is dead wrong. Two out of three people you pass in the street would electrocute you if a laboratory technician ordered them to.
The question is why . . .
The feature I wish to focus on is the slippery-slope character of the electrical shocks. The teacher moves up the scale of shocks by 15-volt 696increments, and reaches the 450 volt level only at the thirtieth shock. Among other things, this means that the subjects never confront the question “Should I administer a 330 volt shock to the learner?” The question is “Should I administer a 330 volt shock to the learner given that I’ve just administered a 315 volt shock?” It seems clear that the latter question is much harder to answer. As Milgram himself points out, to conclude that administering the 330 volt shock would be wrong is to admit that the 315 volt shock was probably wrong, and perhaps all the shocks were wrong.
Cognitive dissonance theory teaches that when our actions conflict with our self-concept, our beliefs and attitudes change until the conflict is removed. We are all pro se defense lawyers in the court of conscience. Cognitive dissonance theory suggests that when I have given the learner a series of electrical shocks, I simply won’t view giving the next shock as a wrongful act, because I won’t admit to myself that the previous shocks were wrong.
Let me examine this line of thought in more detail. Moral decision-making requires more than adhering to sound principles, such as the no-harm principle. It also requires good judgment, by which I mean knowing which actions violates a moral principle and which do not. Every lawyer understands the difference between good principles and good judgment—it is the difference between knowing a rule of law and being able to apply it to particular cases. As Kant first pointed out, you can’t teach good judgment through general rules, because we already need judgment to know how rules apply. Judgment is therefore always and irredeemably particular.
Let’s assume that most of Milgram’s subjects do accept the no-harm principle, and agree in the abstract that it outweighs the performance principle. They still need good judgment to know at what point the electrical shocks violate the no-harm principle. Virtually no-one thinks that the slight tingle of a 15 volt shock violates the no-harm principle: if it did, medical researchers would violate the no-harm principle every time they take blood samples from volunteers. Unsurprisingly, only two of Milgram’s thousand subjects refused to give any shocks at all.
But how can 30 volts violate the no-harm principle if 15 volts didn’t? And if a 30-volt shock doesn’t violate the no-harm principle, neither does a shock of 45 volts.
Of course we know that slippery slope arguments like this are bad logic. At some point, the single grains of sand really do add up to a heap, and at some point shocking the learner really should shock the conscience as well. But it takes good judgment to know where that point lies. Unfortunately, cognitive dissonance generates enormous psychic pressure to deny that our previous obedience may have violated a fundamental moral principle. That denial requires us to gerrymander the boundaries of the no-harm principle so that the shocks we’ve already delivered don’t violate it. However, once we’ve kneaded and pummeled 697the no-harm principle, it becomes virtually impossible to judge that the next shock, only imperceptibly more intense, crosses the border from the permissible to the forbidden. By luring us into higher and higher level shocks, one micro-step at a time, the Milgram experiments gradually and subtly disarm our ability to distinguish right from wrong. Milgram’s subjects never need to lose, even for a second, their faith in the no-harm principle. Instead, they lose their capacity to recognize that administering an agonizing electrical shock violates it.
What I am offering here is a corruption of judgment explanation of the Milgram experiments. The road to Hell turns out to be a slippery slope, and the travelers on it really do have good intentions—they “merely” suffer from bad judgment. . . .
Let me return to the Berkey-Kodak case and see what light the corruption-of-judgment theory may shed on it. The theory suggests that we should find the partner’s and associate’s misdeeds at the end of a slippery slope, beginning with lawful adversarial deception and culminating with lies, perjury, and wrongful obedience. Following this lead, one fact leaps out at us: the misdeeds occurred during a high-stakes discovery process.
Every litigator knows that discovery is one of the most contentious parts of civil litigation. Civil discovery is like a game of Battleship. One side calls out its shots—it files discovery requests—and the other side must announce when a shot scores a hit. It makes that announcement by turning over a document. There are two big differences. First, unlike Battleship, it isn’t always clear when a shot has scored a hit. Lawyers get to argue about whether their document really falls within the scope of the request. They can argue that the request was too broad, or too narrow, or that the document is privileged, or is attorney work-product. Second, unlike Battleship, lawyers don’t always get to peek at the opponent’s card after the game. When the opponent concludes that a shot missed her battleship, she makes the decision ex parte—she doesn’t have to announce it to her adversary, who may never learn that a smoking-gun document (the battleship) was withheld based on an eminently debatable legal judgment.
Every litigation associate goes through a rite of passage: She finds a document that seemingly lies squarely within the scope of a legitimate discovery request, but her supervisor tells her to devise an argument for excluding it. As long as the argument isn’t frivolous there is nothing improper about this, but it marks the first step onto the slippery slope. For better or for worse, a certain kind of innocence is lost. It is the moment when withholding information despite an adversary’s legitimate request starts to feel like zealous advocacy rather than deception. It is the moment when the no-deception principle encoded in Model Rule 6988.4(c)145 gets gerrymandered away from its plain meaning. But, like any other piece of elastic, the no-deception principle loses its grip if it is stretched too often. Soon, if the lawyer isn’t very careful, every damaging request seems too broad or too narrow; every smoking-gun document is either work-product or privileged; no adversary ever has a right to “my” documents. At that point the fatal question is not far away: Is lying really so bad when it is the only way to protect “my” documents from an adversary who has no right to them? If legitimate advocacy marks the beginning of this particular slippery slope, Berkey-Kodak lies at its end.
1.Recall, Rule 5.2(a) specifies: “A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Subpart (b) states, however: “A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”
Interestingly, other professions do not provide a comparable “superior orders” defense. Rather, most other ethical codes explicitly underscore individuals’ obligations to use independent judgment and to comply with relevant standards. For example, Rule 102 of the American Institute of Certified Public Accountants’ Code of Professional Conduct provides that “ . . . in the performance of any professional service, a member . . . shall not subordinate his judgment to others.” Similarly Section 9.055 of the American Medical Association’s Code of Ethics advises medical students, resident physicians, and other staff to “refuse to participate in patient care ordered by their supervisors in those cases in which they believe the orders reflect serious errors in clinical judgment or physician impairment that could result in a threat of imminent harm.” Subordinates should also “communicate their concerns to the physicians issuing the orders and, if necessary, to the appropriate person for mediating such disputes.” So too, Rule 9(a) of the National Society of Professional Engineers’ Code of Ethics for Engineers provides that engineers must “accept responsibility for all professional acts,” and Rule 1(a) requires that if their judgment is overruled under circumstances where the “safety, health, property, or welfare of the public are endangered, they shall notify their employer or client and such other authority as may be appropriate.”146
Defenders of the Model Rules’ approach generally claim that it provides appropriate recognition of the reality of legal practice in organizational contexts: Namely, that the situation of the junior attorney is “more precarious and more pressured” than that of senior attorneys.147 Studies of 699ethical decisions in law firms find considerable incentives for lawyers to adopt, or leave unchallenged, the norms of dominant partners.148 In her study of ethical compliance in law firms, Kimberly Kirkland found that law firm associates from the first day learn “to look up and around” and that “the final arbiter of the quality of your work is not the client, the judge or any external truth, it’s the partner you’re working for.”149
By contrast, critics of the Model Rules’ approach believe that special protection for subordinates is neither necessary nor appropriate. Given the political and financial constraints under which bar disciplinary agencies operate, they tend to pursue clear cases, not those involving “reasonable resolutions of an arguable question of professional duty,” whatever the status of the attorney. In fact, the most comprehensive review of Rule 5.2 found no reported case in which a junior attorney has been absolved of sanctions for following a superior’s order.150
Yet to the extent that the Rule serves primarily to provide ethical guidance for lawyers rather than to affect disciplinary proceedings, critics believe that it provides the wrong message. In critics’ view, subordinate attorneys should be encouraged to raise ethical concerns with their supervisors or with others in a position to review a supervisor’s questionable calls. Such decisions may in some instances be the product of hasty, self-interested, or ill-informed judgments. And in some of those cases, associates who are under less direct pressure than their supervisors to achieve a final result may be in a better position to evaluate ethical concerns. One function of ethical codes is to provide justifications and support for lawyers who might otherwise have difficulty raising moral concerns.
2.In a widely discussed article in the Harvard Law School Bulletin, Professor Duncan Kennedy notes that:
There are many variations on law firm hierarchy. There are firms in which senior partners test associates to see if they are such sell-outs that they’ll do anything, no matter how ethically questionable, and firms in which someone will put a black mark in a mental book if you show the slightest hesitation about putting your arm to the elbow in muck. There are firms where you can get out of doing bad things with the equivalent of “please, not tonight, dear, I have a headache,” and firms where you can engage your coworkers in a serious dialogue about the ethics of particular cases.151
In Kennedy’s view, associates have a responsibility to try and ensure that their firm falls into the final category.
If you fight now, if you come to stand for something now you’ll be able to make things different when you own the place. If you’ve 700done nothing during the long interval but cave in, and cave in, and cave in, you won’t even know it when you own the place, or if you know it you won’t care. . . .
In correspondence responding to Kennedy’s article, Harvard Law School alumnus John Kester wrote:
One should not barter one’s soul to practice law, and one does not have to. It is inconceivable to me that any attorney in my firm would be forced to work on a case if he found it morally offensive. But you can’t expect to be a habitual conscientious objector and still plan to be a general. No law graduates were ever conscripted to join my firm (or to go to law school, for that matter). If they do so, it’s because they seek challenging work, development of skills, able co-workers, an opportunity to help people, and wealth for themselves. If you are far to the left and only support causes you like, then you ought not be offering yourself for general hire as a lawyer. The problem is not with the clients or the cases, it’s with you—you are in the wrong line of work.152
How would you respond? What do the reading by Schiltz and Luban above suggest about the pressures and responsibilities of subordinate lawyers?
3.An extensive body of law addresses how to control organizational misconduct and how to assign individual responsibility in organizational settings. Issues of enterprise liability, corporate crime, aiding and abetting, willful ignorance, conspiracy, and liability of managers and directors all have well-developed doctrine. Such topics are also the subject of an immense theoretical literature in economics, law, psychology and organization theory.153 These doctrinal and theoretical frameworks have some direct application to law firms, corporate counsel offices, and other legal employers.
In analyzing the relationship between organizational structure and collective ethical compliance, Professor Susan Saab Fortney suggests that the move by law firms away from general partnerships, in which all partners share in the legal liability of the firm, toward limited liability structures, in which partners are personally insulated from misconduct by other lawyers, has reduced firmwide incentives for policing collegial misconduct.154 If this is true, what could be done to restore such incentives without withdrawing the protections that limited liability law partnerships provide to lawyers who want to work together and pool resources and risk?
In 2014, General Motors encountered a world of trouble when it came to light that millions of its automobiles had faulty ignition switches. 701As a consequence of the defect, it was easy for keys (especially keys attached to heavy key chains) to slip out of the ignition, which would, in turn, disable power-assisted steering and brakes, as well as air bags. Over time, this defect led to many collisions, over 185 serious injuries, and over 124 deaths.
GM started manufacturing cars with defective ignition switches around 2001 and stopped using the defective switches in its Model Year 2007 fleet. Yet at the time GM stopped using the defective switches, GM did not conduct a recall to remove the faulty and dangerous switches from millions of already-manufactured vehicles. For reasons discussed below, the company went for years without any sense of urgency about the problem and, generally, failed to recognize the problem for what it was.
Once the above information became public, GM’s inaction cost the company dearly. It was fined $35 million from the National Highway Traffic Safety Administration (its maximum penalty) and made to pay a $900 million penalty by the U.S. Department of Justice. GM’s CEO was repeatedly made to testify before Congress. GM reorganized its entire engineering division. And over 2.6 million vehicles with faulty ignition switches were recalled. Meanwhile, the ignition switch debacle set off internal reviews, responsible for the recall of at least another 28 million vehicles. More than 3,000 personal injury and wrongful death claims were filed against GM, most of which have now been resolved or dismissed. By 2019, the company had paid more than $2.6 billion in penalties and settlements.155
GM CEO Mary Barra testified that she only learned about the ignition switch issue on January 13, 2014, and that she made appropriate disclosures very soon thereafter. She suggested that if she, or GM’s previous CEO, had learned of this defect sooner, appropriate action would have been taken, and many lives would have been spared.156
In March 2014 Barra hired the law firm of Jenner & Block to conduct an independent, thorough, investigation. On May 29, 2014, Anton R. Valukas of Jenner & Block released the report, in redacted form.157 Based on more than 350 interviews with 230 witnesses, this report blames the episode on engineering ignorance and bureaucratic dithering, not a deliberate cover-up. In Valukas’s words:
The interviews here showed a troubling disavowal of responsibility made possible by a proliferation of committees. It is an example of what witnesses called the “GM salute,” a 702crossing of arms and pointing outward towards others, indicating that the responsibility belongs to someone else. Here, because a committee was “responsible,” no single person bore responsibility or was individually accountable.158
This phenomenon of “information silos” extended to GM’s lawyers.159 The Report concludes: “[F]aced with a pattern of crashes that had resulted in fatalities and an unexplained ‘anomaly’ that affected the deployment of airbags, [GM’s lawyers] did not . . . elevate the issues to the General Counsel and do not appear to have insisted on a quick and concrete timetable for the safety investigation.”160 The General Counsel claimed that he never knew about the issue. Outside counsel in products liability litigation recommended settling cases quietly, which had the unintended effect of keeping the safety problem bottled up in a litigation committee that did not know the big picture.161 The Report also found:
At a Roundtable discussion [a committee meeting involving staff attorneys concerning product liability suits] on the Cobalt airbag non-deployment issue in 2012 [which was later found to be caused by the faulty ignition switch], a junior lawyer recalled asking whether there should be a recall. He was told that the issue had already been raised with engineering, that the engineers were working on it, and that they had not come up with a solution. This lawyer got the “vibe” that the lawyers had “done everything we can do.”162
Yet in 2003, GM’s then-General Counsel had issued a memorandum to “All Attorneys” in the office, reminding them that: “If you as an attorney are aware of any threatened, on-going, or past violation of a federal, state, or local law or regulation . . . it is your responsibility to respond appropriately.” The memo instructed junior lawyers to “report the situation to your superior,” and, “[i]f you believe that they have not addressed it appropriately or if you believe that bringing it to their attention would be futile, you should pursue it higher in the organization—if necessary, to me as General Counsel.”163 This admonition closely reflects the reporting requirement in the recently-issued Sarbanes-Oxley regulations. It is unclear whether these instructions were still in circulation within GM’s legal department in 2012, when the Roundtable discussion took place.
703a)Suppose you had been the junior in-house lawyer at that 2012 meeting. Assume that you knew at the time of the meeting that the defect in thousands of GM’s cars had already caused many deaths and was certain to cause many more, in the absence of an immediate recall. Assume as well that you guessed, but were not certain, that neither GM’s General Counsel nor its CEO knew about the problem. What would you do? What risks would you face? If you chose to go over your immediate supervisor’s head, what protections might be available to you?
b)Suppose the Valukas report was right that the “information silos” in GM’s legal decisionmaking allowed the safety problems to slip through the cracks for years on end. Under Rules 5.1 and 5.2, who should be held accountable? How could the problem be fixed?
References: Rules 1.13, 1.6, 5.1, 5.2.
1 See William H. Simon, Duties to Organizational Clients , 29 Geo. J. Legal Ethics 489, 497 (2016) .
2 Id. at 495 .
3 Some commentators have suggested, for example, that lawyers for community-based organizations may do a disservice to their clients when they defer to majority-based board decisions that might disempower more vulnerable members of the group. See Stephen J. Ellmann, Client-Centeredness Multiplied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers’ Representation of Groups , 79 Va. L. Rev. 1103 (1992) .
4 Paul Brest & Linda Krieger, Problem Solving, Decision making and Professional Judgment 377–78 (2010).
5 Eric A. Posner & Cass R. Sunstein, Dollars and Death , 72 U. Chi. L. Rev . 537 (2005) ; Binyamin Appelbaum, A Life’s Value? It May Depend on the Agency , N .Y. Times , Feb. 17, 2011, at A1.
6 Marianne Lavelle, Placing a Price on Human Life , Nat’l L.J ., Oct. 10, 1988, at 1, 28 – 29.
7 During the period in question, the Pinto accounted for about 2 percent of automobiles and about 2 percent of fatal accidents accompanied by fire, but about 4 percent of all rear-end fire-related fatalities. Gary T. Schwartz, The Myth of the Ford Pinto Case , 43 Rutgers L. Rev. 966, 1032 (1992) ; see also Malcolm Gladwell, The Engineer’s Lament , New Yorker , May 4, 2015.
8 Mathew T. Lee & M. David Ermann, Pinto “Madness” as a Flawed Landmark Narrative: An Organizational and Network Analysis , 46 Soc. Probs . 30, 37–40 (1999).
9Note that in California’s version of Rule 1.6, the grounds for permissive disclosure are even more narrow than under the ABA Model Rules version, only permitting disclosure “to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual,” and even then only after attempting to persuade the client not to undertake the criminal conduct. Cal. Rules of Prof’l Conduct R. 1.6(b) & (c).
10 Nat’l. Soc. of Prof’l Engineers, Code of Ethics for Engineers , Rule II.1(a), in Codes of Professional Responsibility 102 (Rena A. Gurlin ed., 4th ed. 1999); see also Michael C. McFarland, The Public Health, Safety, and Welfare: An Analysis of the Social Responsibilities of Engineers , in Social, Ethical and Policy Implications of Engineering: Selected Readings 121 (Joseph R. Herkert ed., 2000).
11 James E. Moliterno & George C. Harris, Global Issues in Legal Ethics 131–32 ( 2007) (citing Japanese Fed. of Bar Ass’ns, Basic Rules on the Duties of Practicing Attorneys, art. 51).
12 See, e.g., Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985); Susan Perry & Jim Dawson, Nightmare: Women and the Dalkon Shield 208 (1985); Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Law Legacy , 53 Wake Forest L. Rev . 293, 328–35 (2018) ; Bob Egelko, Court Upholds Big Award Against Ford , S.F. Chron . , Oct. 24, 2002, at A7; Peter Whoriskey & Kimberly Kind, Toyota Faces $16.4 Million U.S. Fine for Waiting to Warn of Defect , Wash. Post , Apr. 6, 2010, at A1.
13 See e . g ., Barry Schwartz, The Paradox of Choice: Why More is Less (2004 ); Jon F. Merz & Baruch Fischoff, Informed Consent Does Not Mean Rational Consent , 11 J. Legal Med. 321, 343–44 (1990) .
14 Schwartz, supra note 7, at 1041–43.
15 Dennis A. Gioia, Pinto Fires and Personal Ethics: A Script Analysis of Missed Opportunities , 11 J. Bus. Ethics 379, 384 (1994) .
16 See George M. Williams III, The SEC’s New “Not Unreasonable Man” Standard , 229 N.Y.L.J. , Feb. 27, 2003, at 1.
17 Letter from Giovanni Prezioso, SEC General Counsel, to J. Richard Manning & David W. Savage, President and President Elect, Wash. State Bar Ass’n, July 23, 2002; Harvey J. Goldschmid, Speech before Association of the Bar of the City of New York, Nov. 17, 2003.
18 N.C. Bar Ethics Comm. Formal Op. 2005–9 (2006).
19 For arguments in support, see John C. Coffee, Jr., The Attorney as Gatekeeper: An Agenda for the SEC , 103 Colum. L. Rev. 1293, 1307–10 (2003) ; Deborah L. Rhode, Moral Counseling , 75 Fordham L. Rev. 1317, 1336 (2006) . For opposition, see Federal Lawmakers Get Earful at Hearing on SEC’s Proposed “Noisy Withdrawal” Rules , 20 ABA/BNA Lawyer’s Manual Prof’l Conduct 69 (Feb. 11, 2004).
20 In some countries, including France and Germany, whistleblowers are regarded as informants, a legacy of World War II. For the difficulties reconciling Sarbanes-Oxley protections for whistleblowers under some European countries’ laws, see John Gibeaut, Culture Clash , ABA J ., May 2006, at 10.
21 Jennifer Wheeler, Securities Law: Section 307 of the Sarbanes-Oxley Act: Irreconcilable Conflict with the ABA’s Model Rules and the Oklahoma Rules of Professional Conduct? , 56 Okla. L. Rev. 461 (2003) .
22 Michael Francus, Legal Ethics and Financial Regulation (2017) (unpublished paper on file with authors).
23 Tamara Loomis, SEC Gores GC in Sarbanes-Oxley Dustup , Legal Times , Jan. 24, 2005.
24 Sissela Bok, Secrets 214–15 (1982); see also Roberta Ann Johnson, Whistleblowing: When It Works—and Why (2003); Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper , 74 Fordham L. Rev. 983, 1064–65 (2005) ; Benoit Monin et al., The Rejection of Moral Rebels: Resenting Those Who Do the Right Thing , 95 J. Personality & Soc. Psych . 1, 76–93 (2008) ; Fred C. Zacharias, Coercing Clients: Can Lawyer Gatekeeper Rules Work? , 47 B.C. L. Rev. 455 (2006) .
25 John Gibeaut, Telling Secrets , ABA J . , Nov. 2004, at 73 (quoting Susan W. Ausman).
26 Tom Mueller, Crisis of Conscience: Whistleblowing in an Age of Fraud (2019); Susan Stranger, Whistleblowers: Honesty in America from Washington to Trump (2019).
27 See Deborah L. Rhode, In the Interests of Justice 106–09 (2001 ); see also Martin Mayer, The Greatest-Ever Bank Robbery (1990); Morton Mintz, At Any Cost: Corporate Greed, Women, and the Dalkon Shield (1985); John Schwarz, Judges Berate Bank Lawyers in Foreclosures , N.Y. Times , Jan. 10, 2011, at A1.
28 John Carreyrou, T heranos Whistleblower Shook the Company — and His Family , Wall St. J ., Nov. 18, 2016. For a blistering account, see John Carreyrou, Bad Blood: Secrets and Lies in a Silicon Valley Startup (2018).
29Stranger, supra note 26, at 1.
30Mueller, supra note 26, at 16. For more on the False Claims Act, see generally David Freeman Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1245 (2012).
31Mueller, supra note 26, at 43.
3215 U.S.C. § 78u–6. Dodd-Frank also creates a private cause of action for whistleblowers retaliated against for taking protected actions. Id.
33Mueller, supra note 26, at 16.
34Id. at 344–46.
35Id. at 515. Other studies find whistleblower complaints are believed at low rates and retaliation claims are dismissed at high rates. Stranger, supra note 26, at 11.
36Mueller, supra note 26, at 456.
37Stranger, supra note 26, at 75–77.
38 Wrongful Discharge Claims by Former In-House Attorneys Gain Acceptance , 29 ABA/BNA Lawyer’s Manual Prof’l Conduct 661 (2013).
39 Ill. Public Act 86–1029, Private Sector Advisory Group (1990).
40No. 100711/13, 2015 N.Y. Mis. LEXIS 4239 (N.Y. Sup. Ct. 2015).
41Id. at 6.
42N.Y. County Lawyers’ Ass’n Comm. on Prof. Ethics Formal Op. 746 (2013). For a critique of this view, see Dennis J. Ventry, Jr., Stitches for Snitches: Lawyers as Whistleblowers, 50 U.C. Davis L. Rev. 1455 (2017).
43 Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176 (9th Cir. 2019) .
44 Id. at 1184 .
45 15 U.S.C. § 78u–6(a)(6) .
46 Wadler , 916 F.3d at 1184 .
47Id. at 1189–90.
48A.J. Brown, Whistleblowers as Heroes: Fostering “Quiet” Heroism in Place of the Heroic Whistleblower Stereotype, in Handbook of Heroism and Heroic Leadership 356, 357 (Scott L. Allison et al., eds., 2017).
49Id. at 359.
50Stranger, supra note 26, at 75–77.
51See Terance D. Miethe, Whistleblowing at Work (1998); Kim, supra note 24, at 1067. For an overview of proposed legislation and related materials, see the website of the National Whistleblower Center, http://www.whistleblower.org.
52 Steven L. Schwarcz, To Make or to Buy: In-House Lawyering and Value Creation , 33 J. Corp. L. 4 97 (2008) .
53 Benjamin W. Heineman, Jr., The Inside Counsel Revolution: Resolving the Partner-Guardian Tension (2016).
54 Christopher Danzig, Inside Job , Inside Counsel , Nov. 1, 2009. A 2010 survey of 130 general counsel and 80 law firm partners around the world concluded that general counsel had acquired substantially greater status and influence since the 2008 recession. Eversheds LLP, Law Firm of the 21st Century: The Clients’ Revolution (2010), https://pdfs.semanticscholar .org/ 6e1f/ 863ca2fdd8417bff918e89843ea85f0989c1.pdf .
55 William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer , 75 Fordham L. Rev . 1453, 1464 (2006) .
56 This case study is based on extensive journalist coverage and congressional testimony. Among the best treatments of the lawyers’ role and their interaction with HP leaders are James B. Stewart, The Kona Files: Hewlett-Packard’s Surveillance Scandal , New Yorker , Feb. 19, 2007, at 152; Sue Reisinger, Did Ann Baskins See No Evil at HP? , Corp. Counsel , Jan. 2007, at 68; Peter Waldman & Don Clark, Probing the Pretexter , Wall St. J. , Sept. 25, 2006, at B1; Lawrence Hurley, Congress Asks HP Where Were the Lawyers? , S.F. Daily J. , Sept. 29, at 1, 9.
57 For additional context, see the discussion in Section D.1 below and Analysis and Perspective: Scandals Involving Investigators Ensnare Lawyers , 21 A BA/BNA Lawyers’ Manual Prof’l Conduct 507 (2006).
58 Damon Darlin, Advisor Urges H.P. to Focus on Ethics Over Legalities , N.Y. Times , Oct. 4, 2006, at C3.
59 Hewlett-Packard’s Pretexting Scandal: Hearing Before the H. Subcomm. on Oversight & Investigations of the Comm. on Energy & Commerce , 109th Cong. 13 (2006).
60 Sheldon Stryker & Peter J. Burke, The Past, Present, and Future of an Identity Theory , 63 Soc. Psych. Q. 28 (2000) ; Cassandra Burke Robertson, Judgment, Identity and Independence , 42 Conn. L. Rev. 1, 14–20 (2009) .
61 Hugh Gunz & Sally Gunz, Hired Professional to Hired Gun: An Identity Theory Approach to Understanding the Ethical Behavior of Professionals in Non-Professional Organizations , 60 Hum. Rel. 851, 882–86 (2007) .
62 Deborah A. DeMott, The Discrete Roles of General Counsel , 74 Fordham L. Rev. 955 (2005) .
63 Michael Orey, In-House Attorneys, Watch Your Step , Bus. Wk . , Aug. 6, 2007, at 36 (quoting Gillers).
64 Id. ; DeMott, supra note 62, at 974–75, 978–79; Stephanie Francis Ward, The Hammer Goes In-House , ABA J., Jan., 2008, at 14 (describing prosecutions and the failure of Enron’s general counsel to address ethical concerns raised by the company’s accounting practices and its CFO’s conflicts of interest); Kim, supra note 24, at 1019, 1054–56 (describing the case against Tyco’s general counsel).
65 DeMott, supra note 62, at 980; Geoffrey C. Hazard & Edward B. Rock, A New Player in the Boardroom: The Emergence of Independent Directors’ Counsel , 59 Bus. Law. 1389, 1395–96 (2004) .
66 David S. Machlowitz, Lawyers Move In-House , ABA J. May 1989, at 69 (quoting counsel for Chase Manhattan Corp).
67 E ve Spangler, Lawyers for Hire: Salaried Professionals at Work 98–99 (1986).
68 Id .
69 Elliot Freidson, Professional Powers: A Study of the Institutionalization of Formal Knowledge 124–25 (1986).
70 Am. Bar Ass’n, Report of the Bar Association Task Force on Corporate Responsibility , 59 Bus. Law. 145, 161, 164 (2003) ; Kim, supra note 24, at 1054–63.
71 Geoffrey Hazard, Jr., Ethics in the Practice of Law 144 (1978).
72 Margaret Tarkington, Introduction: The Ethics of Lawyers in Government , 52 Ind. L. Rev. 265, 269 (2019) .
73On this point, see W. Bradley Wendel, Government Lawyers in the Trump Administration, 69 Hastings L.J. 275, 303 (2017).
74 Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest? , 41 B.C. L. Rev. 789 (2000) ; Bruce A. Green, Must Government Lawyers ‘Seek Justice’ in Civil Litigation? , 9 Widener J. Pub. L. 235 (2000) .
75 See Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer , 5 Geo. J. Legal Ethics 291 (1991) .
76Fed. Bar Ass’n, Model Rules of Prof’l Conduct R. 1.13 (1990).
77 Note, Rethinking the Professional Responsibilities of Federal Agency Lawyers , 115 Harv. L. Rev . 1170, 1175 (2002) ; see also Berenson, supra note 74, at 823.
78 Note, Government Counsel and Their Obligations , 121 Harv. L. Rev. 1409 (2008 ) ; see also Elisa E. Ugarte, The Government Lawyer and the Common Good , 40 S. Tex. L. Rev. 269 (1999) .
79W. Bradley Wendel, Government Lawyers, Democracy, and the Rule of Law, 77 Fordham L. Rev. 1333 (2009).
80This problem has been a prominent one in the Trump administration where, as Professor Bradley Wendel notes, the President and other executive officials have pressured government lawyers to take unethical and possibly illegal positions. These lawyers work in places like the Department of Justice, charged with independently enforcing federal law, and the White House Counsel’s Office, which is supposed to be attentive to the long-range interests of the institution of the presidency, not simply follow the personal wishes of a particular president. Wendel, Trump Administration, supra note 73, at 304. Wendel does not see a strong distinction between the fiduciary duties of government lawyers in protecting the public interest and those of their private sector counterparts, who also have to protect the broader interests of their organizational clients (and their constituents, like shareholders) and resist efforts by managers to advance their own ends. Id. at 303.
81 Id.
82James Comey, A Higher Loyalty: Truth, Lies, and Leadership 187 (2018).
83Id. at 194–95.
84Timeline: What We Know about Trump’s Decision to Fire Comey, Wash. Post. (Jan. 15, 2018), https://www.washingtonpost.com/news/politics/wp/2018/01/05/timeline-what-we-know-about-trumps-decision-to-fire-comey/.
85Id.
86Memorandum from Rod J. Rosenstein, Deputy Attorney General, to the Attorney General, re: Restoring Public Confidence in the FBI (May 9, 2017).
87Letter from Jeff Sessions, Attorney General, to President Donald J. Trump (May 9, 2017).
88Letter from Donald J. Trump, President of the United States, to James Comey, Director of the FBI (May 9, 2017).
89Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, N.Y. Times, Jan. 25, 2018.
90Excerpts from Trump’s Interview with the Times, N.Y. Times, Dec. 28, 2017.
91Letter from Marc E. Kasowitz, Counsel to the President, to Robert S. Mueller, Special Counsel (June 23, 2017).
92 Bruce A. Green & Rebecca Roiphe, Can the President Control the Department of Justice? , 70 Ala. L. Rev . 1, 75 (2018) .
93 Michael D. Shear et al., Trump Fires Acting Attorney General Who Defied Him , N.Y. Times , Jan. 30, 2017.
94 Jack Goldsmith, Quick Thoughts on Sally Yates’ Unpersuasive Statement , Lawfare (Jan. 30, 2017), https://www.lawfareblog.com/ quick-thoughts-sally-yates-unpersuasive-statement ; see also Alan M. Dershowitz, Sally Yates Was Wrong and Should Have Resigned , The Hill , Jan. 31, 2017.
95 Amy Davidson, What Sally Yates Proved about Donald Trump , New Yorker , Jan. 31, 2017.
96 Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention , N.Y. Times , June 25, 2019, https://www.nytimes.com/2019/06/25/us/sarah-fabian-migrant-lawyer-doj.html .
97 Id.
98 James Comey, How Trump Co-opts Leaders Like Bill Barr , N.Y. Times , May 1, 2019, at A27.
99 Jack B. Weinstein, Some Ethical and Political Problems of a Government Attorney , 18 Me. L. Rev. 155, 169 (1966) . On similar reasoning, a state bar ethics committee concluded that it was appropriate for a municipal lawyer to inform an unrepresented civil opponent that he faced risks of self-incrimination and might profit from advice of counsel N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 728 (2000).
100 Clara N. Carson & Jeeyoon Park, The Lawyer Statistical Report: The U.S. Legal Profession in 2005 (2005).
101See Scott L. Cummings, Blue and Green: The Drive for Justice at America’s Port 336–37 (2018) (describing the role of local government lawyers advising city officials on the legality of proposed policy). We will focus on the outer limits of government lawyers’ advisory role in the Torture Memos case study.
102See Kathleen Morris, Cities Seeking Justice: Local Government Litigation in the Public Interest, in How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality 189 (Ray Brescia & John Travis Marshall eds., 2016).
103Wendel, Trump Administration, supra note 73, at 297.
104 Green, supra note 74.
105 Kevin Sack, In Partisan Battle, Clashes Over Health Lawsuits , N.Y. Times , Mar. 27, 2010, at A25.
106 Freeport-McMoRan Oil & Gas Co. v. Fed. Energy Regulatory Comm’n, 962 F.2d 45 (D.C. Circ. 1992) . But see Wendel, Trump Administration , supra note 73, at 296 (arguing that “all of the duties cited by Judge Mikva apply to private as well as to government lawyers”).
107Wendel, Trump Administration, supra note 73, at 331–32.
108For discussion of the heightened public-interest obligations of government lawyers, see, e.g., Berenson, supra note 74.
109 Glenn Kessler, Fact Checker: Trump’s Facile Claim that His Refugee Policy Is Similar to Obama’s in 2011 , Wash. Post , Jan. 29, 2017.
110Letter to Office of Disciplinary Counsel, Bd. on Prof’l Responsibility, D.C. Court of Appeals, from Abbe Smith, Professor, Georgetown Univ. Law Ctr. (Feb. 20, 2017).
111 For an answer to this question, see Hugh D. Spitzer, Model Rule 5.7 and Lawyers in Government Jobs—How Can They Ever Be “Non-Lawyers” ?, 30 Geo. J. Legal Ethics 45 (2017) (arguing that a lawyer in government performing a nonlawyer job should determine whether the position is one that requires the provision of “law-related services” under Rule 5.7 and, if so, to notify those receiving services that they will be provided under circumstances in which the rules of professional responsibility will not apply).
112 For copies of the memos, see The Torture Memos: Rationalizing the Unthinkable (David Cole ed., 2009).
113 Eric Posner & Adrian Vermeule, A ‘Torture” Memo and Its Tortuous Critics , Wall St. J. , July 6, 2004.
114 Id.
115 Id.
116 Peter Brooks, The Plain Meaning of Torture? , Slate , Feb. 9, 2005, available at http:// www.slate.com/ id/ 2113314 .
117 Anthony Lewis, Making Torture Legal , N.Y. Rev. Books , July 15, 2004.
118 Exec. Order No. 13,491 , 74 Fed. Reg. 4893, 4894 (Jan. 22, 2009) ; Memorandum from David J. Barron, Acting Assistant Attorney Gen., Dep’t of Justice, to the Attorney General, Dep’t of Justice, Withdrawal of Office of Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009).
119Jenna Johnson, Donald Trump on Waterboarding: ‘If It Doesn’t Work, They Deserve It Anyway,’ Wash. Post (Nov. 23, 2015); Charlie Savage, Trump Poised to Lift Ban on C.I.A. ‘Black Site Prisons, N.Y. Times (Jan. 25, 2017).
120 Memorandum to John A. Rizzo, Senior Deputy General Counsel, CIA, from Steven G. Bradbury, Re: Application of 18 U.S.C. §§ 2340–2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee, May 10, 2005, at 10–13 [hereinafter “Bradbury Techniques Memo”].
121 Part of this problem also appears in David Luban et al., International and Transnational Criminal Law 113 5–38 (2010).
122 Legal Brief on Proposed Counter-Resistance Strategies from Diane Beaver to Gen. James T. Hill, Oct. 11, 2002, in The Torture Memos , supra note 112, at 229 . The techniques are catalogued in id. at 227–28.
123 In a letter written six years after this meeting, the CIA counsel strongly protested that the minutes distorted his actual comments. See Statement from the CIA lawyer to Sen. Carl Levin, Chair of the Senate Armed Forces Committee, and Sen. John McCain, Ranking Member of the Committee, Nov. 7, 2008. No other participants have disputed the minutes’ accuracy. In considering this Problem, students should keep in mind that the reality may have been different from what the minutes portray.
124 This document was released during Senate hearings on detainee abuse in June 2008.
125 “SERE” stands for “Survival, Evasion, Resistance, Escape.” The U.S. gives SERE training to its own special forces to teach resistance to torture and abuse. Several SERE tactics, including waterboarding, were used by U.S. interrogators against detainees. See David Luban & Katherine S. Newell, Personality Disruption as Mental Torture: The CIA, Interrogational Abuse, and the U.S. Torture Act , 108 Geo. L.J. 333, 353–54 (2019) .
126 Testimony of Michael Stokes Paulsen before the S. Subcomm. on Admin. Oversight and the Courts of the Comm. on the Judiciary, May 13, 2009.
127 744 F.2d 1124 (5th Cir. 1984) .
128 Testimony of David Luban Before the S. Subcomm. on Admin. Oversight and the Courts of the Comm. on the Judiciary, May 13, 2009.
129 Memorandum for John Rizzo, Acting General Counsel CIA, Interrogation of Al Qaeda Operative, Aug. 1, 2002, at 18, available at http:// www. justice. gov/ sites/ default/ files/ olc/ legacy/ 2010/ 08/ 05/ memo-bybee2002.pdf .
130 Bradbury Techniques Memo, supra note 120, at 1.
131 NBC News Special, Decision Points, Interview of George W. Bush by Matt Lauer, Nov. 8, 2010, available at http://www.msnbc.msn.com/ id/ 40076644/ ns/ politicsw-decision_ points .
132 Joan C. Rogers, Supervisory and Subordinate Lawyers , 28 ABA/BNA Lawyers’ Manual Prof’l Conduct 71 , 72–77 (2012) .
133 Walter Kiechel III, The Strange Case of Kodak’s Lawyers , Fortune , May 8, 1978, at 188; James B. Stewart, Jr., Kodak and Donovan Leisure: The Untold Story , Am. Law. , Jan. 1983, at 24.
134 Kiechel, supra note 133, at 188.
135 Trial Tr. at 16,739 (Jan. 21, 1978).
136 Id. at 16,742.
137 Stephen Wermiel, Lawyers’ Public Image Is Dreadful, Spurring Concern by Attorneys , Wall St. J. , Oct. 11, 1983, at 1.
138 Stewart, supra note 133, at 24, 62.
139 David Margolick, The Long Road Back for a Disgraced Patrician , N.Y. Times , Jan. 19, 1990, at B6.
140 See Ronald D. Rotunda, Law Firms Creating In-House Ethics Counsel , Verdict , Nov. 2, 2014. For more on the ethical pressures law firm associates confront, see Douglas R. Richmond, Professional Responsibilities of Law Firm Associates , 45 Brandeis L.J. 199 (2007) .
141 In re Hawk, No. 115-006, 2016 WL 405332 (Dec. 6, 2016) .
142 See Ted Schneyer, Professional Discipline for Law Firms? , 77 Cornell L. Rev. 1 (1991) ; Julie Rose O’Sullivan, Professional Discipline for Law Firms? A Response to Professor Schneyer’s Proposal , 16 Geo. J. Legal Ethics 1 (2002) .
143 Julie Creswell, Milberg Weiss Is Charged With Bribery and Fraud , N.Y. Times , May 18, 2006, at A1.
144 Editors’ Note: Milgram actually offered $4, but this was in 1960 dollars.
145 Editors’ Note: The rule reads: “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
146 Bureau of Nat’l Affairs, Codes of Professional Responsibility 15, 102, 409 (Rena A. Gorlin ed., 1999) ; Carol M. Rice, The Superior Orders Defense in Legal Ethics: Sending the Wrong Message to Young Lawyers , 30 Wake Forest L. Rev. 887, 908 – 09 (1997) .
147 Marc Galanter & Thomas Palay, The Transformation of the Big Law Firm , in Lawyers’ Ideals/Lawyers’ Practices 31, 60 (Robert L. Nelson et al. eds., 1992).
148 See Kimberly Kirkland, Ethics in Large Firms: The Principles of Pragmatism , 35 U. Memphis L. Rev. 631 (2005) ; Milton C. Regan, Jr., Moral Intuitions and Organizational Culture , 51 St. Louis L. Rev. 941, 965–66 (2007).
149 Kirkland, supra note 148, at 632, 711.
150 Rice, supra note 146, at 902.
151 Duncan Kennedy, Rebels From Principle: Changing the Corporate Law Firm From Within , Harv. L. Sch. Bull . 36 (Fall 1981).
152 John G. Kester, Correspondence , Harv. L. Sch. Bull . 32 (Spr. 1982 ).
153 For a sophisticated survey of the literature, see Brent Fisse & John Braithwaite, Corporations, Crime and Accountability (1993). For a review of the social psychology literature, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (2007).
154 Susan Saab Fortney, Professional Responsibility and Limited Liability Issues Related to Limited Liability Law Partnerships , 39 S. Tex. L. Rev. 399, 421–22 (1998) .
155Jonathan Stempel, GM Wins Victory in Ignition Switch Lawsuits, Reuters, Aug. 7, 2019.
156 For more on the GM ignition switch scandal, see Engstrom, supra note 12, at 328–35; Matthew Goldstein & Barry Meier, As Scandal Unfolds, G.M. Calls In the Lawyers , N.Y. Times , Mar. 16, 2014, at BU1; Rebecca R. Ruiz, Woman Cleared in Death Tied to GM’s Faulty Ignition Switch , N.Y. Times , Nov. 24, 2014, at A1.
157 Anton R. Valukas, Report to the Board of Directors of General Motors Company Regarding Ignition Switch Recalls (May 29, 2014), available at http:// www.nytimes.com/ interactive/ 2014/ 06/ 05/ business/ 06gm-report-doc.html?_r=0 .
158 Id. at 68–69.
159 Id. at 213.
160 Id. at 154.
161 Id. at 203–205, 213.
162 Id . at 108. Personal injury settlement offers of between $100,000 and $1.5 million (or ultimately $2 million) required “Roundtable” approval. The Roundtable met weekly, and all product liability staff attorneys were invited to attend. Settlement offers between $2 and $5 million required approval of a group dubbed the Settlement Review Committee, which met monthly and was chaired by the head of global litigation. Settlements exceeding $5 million required the General Counsel’s personal approval. Id . at 107.
163 Id. at 109–10.
Although litigation is often thought of as the core lawyering function, most lawyers, most of the time, are not actually in court advocating on behalf of clients. Rather, they are working outside of court, attempting to resolve disputes or structure prospective relationships in ways that protect their clients’ interests. This chapter explores the ethical dimensions of two types of non-litigation roles that lawyers play: as negotiators and mediators. Of course, in practice, negotiation and mediation are related, though subtly different, concepts. In a negotiation, the focus is on lawyers as client representatives, while in a mediation, parties to a dispute attempt to negotiate an agreement, assisted by a neutral mediator. The focus of this chapter is on the different roles lawyers play in these negotiation and mediation contexts. We will first examine the ethical responsibilities of lawyers as client representatives bargaining with third parties or their counsel in order to reach agreement. We then consider the ethical obligations of lawyers as mediators, when they serve as third-party neutrals seeking to help parties resolve disputes out of court.
More than 95 percent of both criminal and civil cases conclude without trial. Some are dropped by a party or dismissed by a court, but the overwhelming majority are resolved via negotiated settlements. The number of civil cases that are tried to verdict has declined from 20 percent in 1938 to a meager 1 percent today.1 As Marc Galanter points out, “negotiation is not . . . some unusual alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that might fancifully be called LITIGOTIATION.”2
Lawyers also bargain in a broad variety of other non-litigation settings on matters such as contracts, taxes, employment, housing, and divorces. Theorists often distinguish “dispute negotiation”—negotiation to settle disputes about past events—from “transactional negotiation”—negotiation to structure future arrangements. Both forms of bargaining 706take place “in the shadow of the law.”3 In dispute resolution, if the negotiators fail to reach agreement, the case may result in litigation; accordingly, the parties can evaluate each other’s offers by estimating the likelihood and dollar value of a favorable outcome at trial, together with the costs of achieving it. In transactional negotiations, parties’ choices and bargaining leverage are often shaped by background legal entitlements and available future remedies.
A key threshold question is whether to engage in negotiation in the first place. The central issue is “compared to what.” This involves calculating what experts refer to as BATNA: the Best Alternative to a Negotiated Agreement.4 To make that evaluation, parties need to understand their most significant interests and goals: What are they trying to achieve and why? And they need to predict the consequences of negotiating or refusing to negotiate.5
This section explores key ethical responsibilities—and ambiguities—that arise when parties have chosen to negotiate. We first survey the ethical context, paying close attention to the professional rules governing negotiation activities and highlighting how they interact with different negotiation styles. The section then drills down on two central ethical challenges for lawyers in negotiations: coercion and candor.
Most negotiation involves the strategic use of bargaining power and asymmetrical information. As a consequence, negotiations often raise difficult questions for lawyers about pressure tactics and disclosure obligations. These questions implicate various ethical rules and legal doctrine concerning fraud, extortion, and other misconduct.
Rule 4.1 (discussed in Chapter 7 in connection with the Garza case), governs “truthfulness in statements to others.” It provides guidance regarding what lawyers can say—and what is appropriate for them not to say—while negotiating on behalf of their clients. While Rule 4.1(a) clearly prohibits lawyers from knowingly making “a false statement of material fact or law to a third person,” the rule is less clear concerning when nondisclosure of information constitutes an ethical violation. Rule 4.1(b) makes lawyers subject to discipline if they knowingly “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6,” which is the rule requiring confidentiality. However, as we will see, what constitutes a “material fact,” what it means 707to assist a client crime or fraud, and when exactly confidentiality applies are all subject to debate.
Also relevant is Rule 4.4(a), which seeks to promote “respect for rights of third persons” by prohibiting lawyers from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person.” This rule constrains tactics that attempt to exploit opponents’ vulnerabilities, such as threatening custody battles in divorce cases or threatening to expose potential criminal liability. Some states have stricter rules against using threats to gain a bargaining advantage, which we discuss in the section on coercion below.
Two other professional conduct rules are particularly relevant in negotiation settings. Rule 1.2(d) provides that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” And Rule 8.4, sections (c) and (d), prohibits lawyers from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation,” or other conduct “that is prejudicial to the administration of justice.”
Keep these rules in mind as you read the negotiation materials that follow. In this discussion, we will also reference other authorities, particularly the ABA Section of Litigation’s Ethical Guidelines for Settlement Negotiations, which was published in 2002 (ABA, Ethical Guidelines).6 These Guidelines provide the ABA’s best interpretation of ethical rules that relate to negotiation practice; unlike the states’ Rules of Professional Conduct, however, they do not create binding obligations that can form the basis for professional discipline.
Negotiating dynamics are affected not only by rules of conduct, but also by lawyers’ own ethical values and bargaining styles. Because so much negotiation takes place in the absence of formal oversight, a lawyer’s own internal sense of honesty and fair dealing plays a critical role. In evaluating the appropriateness of bargaining conduct and the professional rules that regulate it, consider the following principles.
Universality: “Could I recommend that everyone in my situation act this way?”
Reciprocity: “Would I want others to treat me this way?”
Transparency: “Would I be comfortable if I read about what I had just done on the front page of the Wall Street Journal?”7
Legality: “Do substantive laws of tort, contract, fraud, or extortion permit this negotiating tactic? What about the rules of professional conduct?”
708Many of the ethical problems arising in negotiation result from the view that successful bargaining requires an adversarial stance. Some experts, however, believe that a cooperative approach to bargaining is not only more ethical, but also, often, more effective.8 Advocates of cooperative negotiation claim that high ethical standards and a collaborative approach enhance opportunities for creative, mutually advantageous solutions.
In essence, the key technique of cooperative negotiation is to avoid getting overly invested in a client’s bargaining position, and to look instead at the underlying needs and interests that led the client to assert the position in the first place. That way, negotiators may be able to achieve their clients’ ends without getting trapped in competitive game-playing. Major principles of cooperative bargaining include:
A key concern among those who prefer cooperative approaches is whether they will work when the other negotiator is non-cooperative. The answer is a qualified “yes.” In these situations, successful negotiators adopt four basic strategies:
In short, successful cooperative approaches are nice, provokable, forgiving, and transparent.10 A bargainer who follows these rules will occasionally risk being exploited by a non-cooperative adversary. However, research has shown that if negotiators encounter each other in repeat transactions or have knowledge of their adversary’s reputation, non-cooperative negotiators will be “punished” for excessively competitive and aggressive past behavior.11 Within communities of repeat players, cooperation works better over the long run.12 When asked what style of negotiation is effective, lawyers overwhelmingly rate 710cooperative/problem-solving (54 percent) over competitive/adversarial (9 percent).13
Yet, as experts also note, there are complexities in defining “effectiveness” that are not captured by the simple cooperative/competitive dichotomy. Charles Craver argues that a third type of negotiator is most effective: competitive/problem-solvers who “seek competitive objectives—maximizing of their own returns—but do so in a non-adversarial manner. They also strive to maximize opponent returns once they have achieved their own primary goals.” “They work to create value . . . but then employ disingenuous tactics to claim more of the bargaining surplus than they give to their opponents.”14 More fully cooperative bargainers can be fooled by this approach. They “reciprocate the seeming openness of [competitive problem solvers] without realizing that their openness is not being entirely reciprocated.”15 Because the process is pleasant, respectful, and seemingly candid, cooperative bargainers may overvalue the objective results that they actually obtain.16
Robert Condlin identifies another complexity. He notes that some degree of competition is inherent in the negotiation process; there are adversarial elements even in cooperative bargaining, and sometimes there is no alternative to very hard bargaining. A common “bargainer’s dilemma” involves whether to seek the long-term gains of cooperative bargaining or the one-time advantage that successful competitive bargaining can sometimes confer. In Condlin’s view, the duty of zealous advocacy for a current client may require lawyers to seek the one-time advantage. Otherwise, they are trading off the client’s interests for their own long-term bargaining effectiveness, which benefits only themselves, their future clients, and the present client’s adversary. Such a strategy appears to violate Rule 1.7(a)(2): “a lawyer shall not represent a client if . . . the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . . or a third person or by a personal interest of the lawyer.”17
Building on such insights, some experts agree with Condlin that it is self-deceiving to think that ethical conduct in negotiation can always be viewed as enlightened self-interest. Lies that are unlikely to be revealed may be highly effective in claiming, if not creating, gains.18 And as Gerald Wetlaufer notes, the world in which we live “honors 711instrumental effectiveness above all else.”19 However, Wetlaufer also argues that many of our common excuses for lying are equally self-deceptive. Relying on excuses such as “everyone does it” or “the other side is doing it” presupposes an impoverished view of morality that we would reject in other contexts. Moreover, as other experts note, it is important for negotiators to maintain their own standards of fairness, self-respect, and credibility. Those who stoop to their opponents’ level forfeit both their moral and legal advantage, which may be especially relevant if the bargain is ever challenged. In the long run, unethical practices impair reputations and weaken fundamental values of trust and integrity on which effective lawyering depends.20 As social psychologists note, reputations are “sticky” because people tend to remember information that confirms preexisting impressions; once developed, reputations are relatively easy to maintain, but once tarnished, they are hard to repair.21 Even in law school negotiating classes, students who are perceived as misrepresenting positions end up with more unsuccessful negotiation outcomes by the end of the semester.22
At the same time, it is also important to minimize clients’ risk of suffering exploitation when bargaining with parties who appear willing to cut ethical corners. The risks are greatest in one-shot bargaining contexts where the stakes matter greatly and reputations or relationships do not. Commonly recommended strategies of self-protection include:
Although such strategies may not always be fully effective, negotiation experts note that sometimes:
712[E]thics and integrity are things for which a price may have to be paid. . . . [To that end] we might clearly define winning in a way that leaves room for ethics. It might, for instance, be understood not as “getting as much as we can” but “winning as much as possible without engaging in unacceptable behavior,” and “unacceptable behavior” might then be understood to exclude not just those things that are stupid or illegal but also those other things that are unethical. And finally we might give up our claim that . . . [we have no choice between] the harsh individualist reality of instrumental effectiveness and the elusive possibilities of ethics, integrity, reciprocity and community.23
Other differences in negotiation styles reflect cultural differences and group identities. Lawyers need to be sensitive to these variations in order to accurately assess opposing parties’ values, interests, and behaviors, and to avoid unintentionally giving offense.24 The difference that has been most extensively studied involves gender.
Over the past several decades, a large body of theoretical and empirical research has attempted to determine whether men and women have different negotiating styles and levels of effectiveness. Despite this extensive literature, there are large gaps and inconsistencies, as well as frequent overgeneralizations from the limited findings available. Many studies involve college students or young and inexperienced adults in unrealistic, simulated, one-shot settings that hold limited relevance for lawyer negotiators.25
Granting such limitations, a number of common findings from this body of research can shed light on negotiations involving attorneys. One takeaway is that gender is mediated by other aspects of the negotiating context, including participants’ relative social status, perceived power, and attitudes toward conflict.26 Other relevant factors include whether negotiators are the same sex, whether they have negotiating experience or ongoing relationships, and whether they are acting for themselves or as representatives for clients or third parties.27 Women tend to do better when acting for others, in part because they are more likely to be viewed negatively than men when they bargain for themselves on matters such 713as compensation.28 On the whole, however, in contexts involving lawyers where assertiveness on behalf of clients is expected, no consistent differences between female and male negotiators’ effectiveness emerge.29
Women and men do, however, display certain distinctive strengths. Women are generally rated higher than men on some of the qualities that are useful in negotiation. One is social intuition, including the ability to read others and build rapport.30 Another is empathy, including skills in listening and appreciating others’ interests and concerns.31 Some research also finds that women negotiators are more likely than men to disparage ethically questionable tactics and are less likely to lower their ethical standards, even when doing so would benefit them financially.32 Men, by contrast, are freer to behave assertively without fear of backlash.33 They also have higher levels of confidence, which can be helpful in setting high goals, persisting in the face of opposition and self-presentation.34 However, men are also more likely to display overconfidence, which can impair listening, alienate opponents, and undermine effectiveness.35
It is important to note that these average differences do not predict differences in individual cases, and many differences are less pronounced among lawyer negotiators who have training and experience in effective bargaining techniques. Still, acknowledging real gender differences—and surfacing and debunking myths—can help level the negotiating playing field. Research demonstrates that making women aware of mistaken stereotypes about their bargaining styles and abilities can improve their performance.36
This section examines what it means for lawyers to be both ethical and effective in negotiation for clients. We focus on two central challenges. The first—coercion—involves situations in which lawyers advance arguments or employ tactics that pressure opposing parties to accept agreements that may offend notions of fairness or legitimacy. The second challenge relates to candor. Here, the question is how much 714information a lawyer must or should disclose to ensure an outcome that serves clients’ interests without offending standards of procedural fairness.
Consider the “ultimatum bargaining game”: Rich and Poor are offered $1,000 to divide as they choose, provided that they agree on a division. If they don’t, neither gets a cent. Rich offers Poor $100, threatening to walk unless Poor accepts. Since Rich can afford to make good on the threat, and Poor needs the money, Poor accepts. Is this a coercive or otherwise unfair use of bargaining power?
At the outset, it is important to note that whether or not hardball bargaining strategies meet the legal definition of “coercion,” research confirms that they seem unfair to most people. In one study, subjects played a version of the ultimatum bargaining game where players received a sum of money to divide. The first player was given one chance to make an offer, and the second player had one opportunity to take it or leave it (in which case, both players would get nothing). The study revealed that, although most people are unwilling to forego all advantages of superior bargaining power, most are also unwilling to exploit it fully or to accept such tactics by an adversary. Specifically, a quarter of first players proposed a 50–50 split, and the average first player offer was a 67–33 split. Only 10 percent of first players demanded more than 90 percent of the money—and in almost all of those cases, second players refused the offer, despite the fact that doing so cost them money. In a similar study, where subjects observed other players in action before playing ultimatum with them, three-fourths of the subjects preferred splitting a small amount of money with a “fair” player over splitting a slightly higher amount with a “hardball” player.37 Such research suggests that exploitative bargaining can be ethically offensive and tactically unwise, even if it is legally permissible.
When is hardball bargaining legally permissible? Contract law permits some forms of coercion in bargaining—as when a negotiator threatens to withhold goods or services from a party who will not agree to a price. But the law invalidates contracts when they are the product of “duress.” The Restatement of Contracts defines “duress” as:
(a)any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or
(b)any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will 715and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.38
Part (b) adopts what theorist Alan Wertheimer labels a “two-pronged” theory of duress. Wertheimer argues that two conditions must be met for an offer or a threat to qualify as duress. First, the statement must leave the victim no reasonable choice but to acquiesce. Second, it must be independently wrongful.39 So, for example, exploiting a party’s vulnerability may be coercive without constituting duress if the offer was not fraudulent or otherwise illegal. However, some types of coercive tactics rise to the level of duress, such as when a negotiator threatens to breach a prior agreement that would “place the victim in a position in which breach would cause noncompensable damage.”40 Although the line between legitimate coercion and unlawful duress is murky, versions of this theory inform not only the law of contracts, but also the law governing crime, torts, marriage, and wills.41
An additional question for lawyers is when using coercive tactics or arguments in advancing client interests exposes lawyers to professional sanction. Of course, under Rule 1.2(d), if a lawyer were to “counsel . . . or assist” a client in coercive behavior that the lawyer knew was “criminal or fraudulent,” the lawyer could be subject to discipline. Similarly, if the lawyer’s engagement in coercive negotiation involves “dishonesty, fraud, deceit, or misrepresentation,” or is deemed “prejudicial to the administration of justice,” the lawyer could be held to violate Rule 8.4(c) or (d). Additionally, to the extent that coercion served “no substantial purpose” other than to “burden” an opposing party, a lawyer could risk sanctions under Rule 4.4(a).
In this regard, one question that commonly arises for lawyers in negotiation is whether it is proper to threaten to exercise a legal right in order to gain a negotiation advantage. For example, can a lawyer in a civil case threaten to initiate criminal proceedings against an adversary in order to pressure the adversary to settle?
The Model Code, in place until the Model Rules replaced it in 1983, prohibited lawyers from threatening to present criminal charges to law enforcement personnel “solely to obtain an advantage in a civil matter.”42 However, that prohibition was dropped from the Model Rules because 716drafters considered it overbroad, redundant (in light of Rules 8.4, 4.4, and 4.1), and also unrealistic, as many lawyers reasonably discuss potential criminal liability in negotiations over related civil claims.43 Accordingly, the Model Rules now adopt a more permissive attitude toward the use of criminal threats. In particular, ABA Formal Opinion 92–363 (1992) concludes that a lawyer may use the possibility of pressing criminal charges against an opposing party in a private civil matter to gain relief for the client, provided that the criminal matter is related to the civil claim, that both the civil claim and the possible criminal charge are legally and factually justifiable, and that the lawyer does not attempt to exert improper influence over the criminal process. A lawyer may also agree as part of a settlement to refrain from presenting criminal charges against an opposing party so long as the settlement agreement does not violate existing law.
On the other hand, some jurisdictions continue to adhere to the Model Code’s position and prohibit lawyers from threatening opposing parties with criminal sanctions in order to gain a financial advantage.44 For instance, the D.C. Rule of Professional Conduct 8.4(g) states: “It is professional misconduct for a lawyer to . . . [s]eek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.”
Meanwhile, while most states now permit lawyers to threaten an opposing party with criminal prosecution (as long as the threat is legally and factually justified), most states continue to hold that lawyers may not attempt to gain a tactical advantage by threatening disciplinary charges against an opposing lawyer. In Formal Opinion 94–383 (1994), the ABA Ethics Committee concluded that a lawyer’s threat to report opposing counsel to disciplinary authorities in order to obtain an advantage in a civil case may violate the Model Rules, even though no Rule expressly prohibits such threats. Under the Committee’s analysis, filing disciplinary charges may not be used as a bargaining chip if the misconduct raises a substantial question as to opposing counsel’s honesty, trustworthiness, or fitness as a lawyer because reporting is already mandatory under such circumstances under Rule 8.3. See Chapter 3, supra.
When is it ethically permissible for a lawyer to make threats in negotiation that, while not exposing the opposing party to criminal sanction, nevertheless raise serious risks that exert powerful pressure to settle? Consider this issue in the context of the following discussion of negotiating a divorce settlement in which one party uses the threat of 717challenging custody rights in order to reduce his financial support obligations.
Richard Neely, “The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed”
3 Yale Law & Policy Review 168, 177–79 (1984).
A [divorcing] parent concerned with paying as little child support as possible can use the threat of a custody fight, with its never-certain outcome, as a lever during settlement negotiations. The result is that one parent—typically the father—winds up paying less in child support than the needs of the child or children warrant, while the other parent—typically the mother—is forced to scrape by on inadequate support, a problem exacerbated by the generally lower earning power of women. . . .
Divorce decrees are typically drafted for the parties after compromises reached through private negotiation. These compromises are then approved by a judge, who generally gives them only the most perfunctory sort of review. The result is that parties (usually husbands) are free to use whatever leverage is available to obtain a favorable settlement. In practice this tends to mean that husbands will threaten custody fights, with all of the accompanying traumas and uncertainties discussed above, as a means of intimidating wives into accepting less child support and alimony than is sufficient to allow the mother to live and raise the children appropriately as a single parent. Because women are usually unwilling to accept even a minor risk of losing custody, such techniques are generally successful.
To make these abstract statements more concrete, I would like to use an example from my own experience. My first encounter with the manner in which the unpredictability of divorce proceedings can be used to terrorize women came early in my career as a small-town lawyer.45 My client was a railroad brakeman who had fallen out of love with his wife and in love with motorcycles. Along the way, he had met a woman who was as taken with motorcycles as he. After about a year, my client’s wife filed for divorce. My client had two children at home—one about nine and the other about twelve. Unfortunately for him, the judge in the county where his wife had filed her suit was notorious for giving high alimony and child support awards. The last thing that I wanted to do was go to trial. The wife had a strong case of adultery against my client, and the 718best my client could come up with was a lame countersuit for “cruel and inhuman treatment”—not exactly a showstopper in a rural domestic court.
During the initial interview, I asked my client about his children, and he told me that he got along well with them. He also indicated, however, that two children were the last thing he wanted from his divorce. Nonetheless, it occurred to me in my role as zealous advocate that if my client developed a passionate attachment to his children and told his wife that he would fight for custody all the way to the state supreme court, we might settle the whole divorce fairly cheaply. My client was a quick study: That night he went home and began a campaign for his children. His chance of actually getting custody from the judge was virtually nonexistent, but that did not discourage our blustering threats.
My client’s wife was unwilling to take any chance, no matter how slight, on losing her children. Consequently, the divorce was settled exactly as we wanted. The wife got the children by agreement, along with rather modest alimony and child support. All we had needed to defeat her legitimate claims in the settlement process was the halfway credible threat of a protracted custody battle. As Solomon showed us, the better a mother is as a parent, the less likely she is to allow a destructive fight over her children.
The above story is more than just a homey example, for it is repeated across the nation every day. Under our purportedly sex-neutral system, women on statistical average come out of divorce settlements with the worst of all possible results: They get the children, but insufficient money with which to support them. They are forced to scrape along to support their families at inadequate standards of living, and the children are forced to grow up poor, or at least poorer than they should be. Yet the dynamic demonstrated above is seldom discussed, despite its importance in promoting the growth of a rapidly-expanding class of poor people, the female-headed household.
1.In Justice Neely’s example, the mother makes a financial sacrifice because she is highly risk averse: She will not gamble on custody, even if the odds are excellent that she will prevail. A parent who is less risk averse will be less susceptible to what is often called “custody blackmail.” However, there are reasons besides risk aversion to yield to such coercion. One is to spare children the trauma of litigation. A second arises from the “friendly parent” provisions applicable in many states that give preference to the parent who has demonstrated willingness to share custody or to grant more extensive visitation rights. These provisions create a bargaining opportunity for parties interested in minimizing support payments. By demanding joint custody over their former spouse’s opposition, they can qualify as the friendly 719parent. That gives them leverage to trade uncontested custody in return for reduced financial obligations.
The frequency of “custody blackmail” is hard to gauge. The limited evidence available suggests that it is sufficiently common to cause concern and that women are almost always the vulnerable party.46 Their vulnerability is compounded by other disadvantages, such as greater risk aversion, lower wage earning capacity, and higher likelihood of dependence and deference in marital relationships.47
The term “custody blackmail” was obviously coined by opponents of the practice, as it implies that the strategy is always improper. Is it? Can you imagine yourself engaging in this practice? Under what circumstances?
2.Is it unethical for a lawyer to propose “custody blackmail” to a client who has not indicated a desire for custody but who has indicated a desire to minimize his support obligations? Does the appropriateness of the strategy depend on whether the lawyer or the client initially suggests it? Does it depend on whether the other spouse’s financial demands seem excessive? Consider how you would answer these questions under Rules 1.2(a) and (d), 1.4, 4.4(a), and 8.4(c) and (d). If a client claims to want sole or joint physical custody, but the lawyer believes the client does not really mean it or should not obtain it, must the lawyer withdraw under Rule 1.16? For guidance, see ABA, Ethical Guidelines § 3.3.3 (providing that lawyers who find a client’s goal or strategy repugnant may withdraw or continue representation on the condition that they will not assist that goal or strategy). Suppose the client wants to negotiate directly with the former spouse? For guidance, see id. § 4.3.3, Committee Notes (indicating that lawyers need not discourage a client’s contact with an opposing party but citing divided authority over whether a lawyer may encourage or advise a client in that contact).
3.Raoul Felder, a prominent divorce lawyer, described his role as a “technician, a how-to man,” not a “moralist.” “It is not my intention to stand in judgment. . . . [W]hen I take a case, I am not concerned with whether my client is right or wrong. As far as I am concerned, my client is always right.”48
What is your view? Few would argue that clients in the middle of acrimonious divorces are always “right” about what is in their long-term interest.49 Particularly where parties will have continuing contact after the divorce, hardball bargaining strategies that have short term payoffs may have larger long term costs. Is it part of a family lawyer’s role to help clients live up to their best, rather than worst, instincts? Or are such efforts an 720inappropriate exercise in paternalism by lawyers who will not have to cope with the consequences?
4.A growing number of family practitioners address these issues through what they term “collaborative lawyering.” Their aim is to offer a more cooperative form of dispute resolution.50 Under this approach, parties commit to collaborate with each other as well as with their lawyers in an attempt at mutual problem solving. Each client is represented by counsel, and each signs a retainer agreement that specifies that the lawyer is to assist them in reaching a fair, out-of-court agreement. If the parties fail to reach such a settlement, the lawyers may not represent them in further proceedings. The clients also commit to act in good faith and to disclose all relevant information. This dispute resolution process involves joint settlement meetings with parties and their lawyers, all of whom have a substantial stake in preserving cooperative relationships and engaging in creative, mutually beneficial problem solving.
What do you make of the above termination requirement? A Colorado Bar Ethics Opinion, Op. 115 (2007), held that agreements requiring termination of representation if the parties do not reach settlement violate Rule 1.7(b). Recall, that rule bars attorneys from representing a client where their responsibilities to that client may be “materially limited by the lawyer’s responsibilities to . . . a third person,” unless the lawyer reasonably believes that, notwithstanding the conflict, the lawyer can provide “competent and diligent representation” and the client gives informed consent. According to the Colorado Bar Ethics Committee, client consent could not cure the potential conflict because, whenever the collaborative process is unsuccessful, the lawyers’ obligation to the opponent to withdraw would trump the lawyer’s obligation to pursue the client’s best interest, which might be litigation. Do you agree?
At least ten other bar ethics opinions, including ABA Formal Op. 07–447 (2007), permit lawyers to enter into termination agreements as part of the collaborative process.51 How would you advise a client about the appropriateness of entering into such a collaborative process? What might be some advantages and disadvantages?
5.If you practiced in the area of family law, where on the spectrum between technician and collaborator would you feel most comfortable? Why? Should courts, bar associations, and ethical rules do more to encourage cooperative approaches?52
7216.Ethical issues often arise in family law because the interests of children are materially affected but seldom formally represented. To what extent should this fact influence a divorce lawyer’s negotiating strategy? Do existing ethical rules adequately provide for the interests of unrepresented third parties? Consider as an alternative, The Bounds of Advocacy: Goals for Family Lawyers, of the American Academy of Matrimonial Lawyers, a voluntary association of qualified family law specialists. Goal 6.1 provides that “[a]n attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.” The Comment adds:
One of the most troubling issues in family law is determining a lawyer’s obligations to children. The lawyer must competently represent the interest of the client but not at the expense of children. The parents’ fiduciary obligations for the well-being of a child provide a basis for the attorney’s consideration of the child’s best interests consistent with traditional advocacy and client loyalty principles. It is accepted doctrine that the attorney for a trustee or other fiduciary has an ethical obligation to the beneficiaries to whom the fiduciary’s obligations run.
In particular, Goal 6.2 provides: “An attorney should not permit a client to contest child custody, contact, or access for either financial leverage or vindictiveness.” Its Comment states:
Tactics oriented toward asserting custody rights as leverage toward attaining some other, usually financial, goal are destructive. The matrimonial lawyer should counsel against, and refuse to assist, such conduct. Proper consideration for the welfare of the children requires that they not be used as pawns in the divorce process. Thus, for example, in states where child support is determined partly on the basis of the amount of time a parent spends with the child, the lawyers should negotiate parenting issues based solely on considerations related to the child, then negotiate child support based on financial considerations. If despite the attorney’s advice, the client persists, the attorney should seek to withdraw.
The Preliminary Statement to these goals makes clear that they “aspire” to a level of practice above the minimum required by the Model Rules but that they should not be used to determine malpractice liability. Should those Rules impose any affirmative obligations vis-à-vis highly vulnerable third parties like children? Alternatively, should bar regulatory authorities or voluntary associations develop certification systems to identify lawyers willing to abide by higher ethical standards?
7.Commentators have proposed a variety of metrics to assess “fairness” in negotiation. One is to assess substantive results by criteria such as:
Another possibility is to evaluate the process. Consider three possible approaches. The first is the market theory: a fair settlement is whatever the parties agree to, provided that the agreement has not resulted from coercion or fraud. The second is the shadow verdict theory: a fair settlement is whatever approximates the result the court would have reached if the case had gone to adjudication—the so-called “shadow verdict.” A final approach is perceptions of fairness: an equitable settlement is what emerges from a process that participants consider just. Major factors that influence those perceptions include whether the parties had an adequate opportunity for their concerns to be heard and whether they were treated with dignity and respect.54 Which of these approaches should legal rules and legal ethics seek to promote? How would they help in assessing the fairness of Justice Neely’s negotiation?
8.One issue that has gained traction in the wake of the #MeToo movement against sexual harassment and assault involves mandatory nondisclosure agreements that condition settlements of a claim on parties’ agreement not to reveal anything related to the claim. 55 Almost all settlement agreements in civil sexual misconduct cases include these nondisclosure provisions, which require violators to return or forfeit any payments and to pay their adversaries’ legal fees. There is evidence that these secrecy requirements enable serial abuse. Harvey Weinstein had several such settlements, and women who signed them were warned that violations could subject them to hundreds of thousands of dollars in damages. 56 Bill O’Reilly had six such secret settlements, totaling $77 million. 57 A gymnast who reached an agreement with USA Gymnastics based on abuse by the organization’s former doctor, Larry Nassar, even faced a $100,000 penalty if she spoke at his sentencing hearing. 58
Defenders of such provisions note that they serve complainants’ interests as well as the interests of alleged perpetrators. Confidentiality clauses protect the privacy of victims who want to avoid public knowledge of sometimes humiliating and traumatic events and are concerned that exposure will taint them as “litigious” and impair their future employment 723 prospects. 59 Nondisclsoure agreements also make defendants far more likely to settle claims on terms favorable to accusers. But as demonstrated by the preceding examples, they arguably shield perpetrators from accountability and enable serial abuse.
A growing number of states are considering, or have enacted, legislation that bans nondisclosure agreements in cases involving sexual misconduct. 60 A recently enacted California statute provides that lawyers who draft confidentiality clauses concealing conduct that could constitute a felony sex offense, or who advise clients to agree to such clauses, could be subject to professional discipline. 61 Would you support such legislation? In its absence, could or should lawyers be subject to sanctions for drafting a settlement agreement with a nondisclosure clause that courts have found unconscionable or against public policy? 62 Under what circumstances would you push, or refuse to push, for a confidentiality provision in negotiations to settle a sexual misconduct claim?
Rule 4.1, titled “Truthfulness in Statements to Others,” prohibits a lawyer from making a false statement of “material fact or law to a third person,” and it also prohibits a lawyer from failing to disclose a material fact when disclosure is necessary to “avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6” governing confidentiality.
Rule 4.1’s prohibitions raise three important issues. First, what is a “material fact”? Second, when is a material fact’s disclosure necessary to “avoid assisting a criminal or fraudulent act”? Third, when is a disclosure that might otherwise be required under Rule 4.1 nonetheless prohibited because of Rule 1.6? Recall that Rule 1.6(a) prohibits the disclosure without client consent of all “information relating to the representation,” though Rule 1.6(b) permits the lawyer’s discretionary disclosure of confidential information in specific, carefully delineated situations.
As to whether a statement is a “material fact,” Comment 2 to Rule 4.1 provides:
[2]This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed 724on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.
Likewise, ABA Formal Op. 06–439 (2006) distinguishes between impermissible misstatements of fact and acceptable “posturing” or “puffing,” such as exaggerated claims about the strength and weakness of factual and legal positions. The opinion further advises:
[S]tatements regarding a party’s negotiating goals or its willingness to compromise . . . as well as statements that can fairly be considered as negotiation “puffing,” ordinarily are not considered false statements of material fact within the meaning of the Rules.63
Even with that guidance, however, it is still not entirely clear exactly what statements constitute false “material facts.” Are gross exaggerations material facts? What about half-truths or intentional misstatements? What about misrepresentations involving the nature and value of property, the consequences of certain decisions, or the parties’ readiness for trial?64
Next, recall that Rule 4.1(a) prohibits making “false statement[s] of material fact . . . to a third person,” while 4.1(b) requires disclosure of material facts if “necessary to avoid assisting a criminal or fraudulent act by a client.” This, in turn, requires the lawyer to determine whether keeping particular information secret would constitute a crime or fraud—typically, “misrepresentation”—under relevant state contract or tort law. This determination can be challenging, given the murkiness of doctrine surrounding the fringes of fraud.
Suppose that in the course of negotiations it becomes apparent that your opposing counsel lacks certain crucial information. Your obligations depend partly on the doctrine of fraud. Under the Restatement (Second) of Contracts, misrepresentations may rise to the level of fraud when they are made to induce consent to a contract, and the maker knows they are false, or lacks confidence in, or knowledge of, their truthfulness.65 In addition—and crucially—nondisclosure may be considered fraudulent in certain circumstances. Three are particularly relevant. First, nondisclosure might be a fraudulent misrepresentation if it permits some previous false, material statement to stand uncorrected.66 Second, nondisclosure might be considered fraudulent if the fact in question concerns a basic assumption of the negotiation, and nondisclosure would 725violate “good faith and . . . reasonable standards of fair dealing.”67 Relevant factors include whether the negotiator deliberately attempted to deceive, was dealing with an unusually gullible party, made partial disclosures that were literally true but misleading, had material information unavailable to the other side, or reasonably appeared to have special skill and judgment related to the matter in question.68 Finally, a person’s non-disclosure may be equivalent to an affirmative misrepresentation “where the other person is entitled to know the fact because of a relation of trust and confidence between them.”69
The Restatement (Second) of Torts also provides that a misrepresentation may be fraudulent when the maker knows of its falsity or lacks confidence in its truth.70 The Restatement also specifies several situations in which nondisclosure is equivalent to misrepresentation. They include circumstances where the negotiator owes fiduciary duties to the other party; where the negotiator knows that disclosure is necessary to prevent statements from being otherwise misleading; or where the negotiator knows that the other party is mistaken as to an undisclosed fact that is basic to the transaction and the negotiator “because of the relationship [with the other party], the customs of the trade or other objective circumstances, would reasonably expect a disclosure.”71 The Restatement also imposes a duty to “to exercise reasonable care to disclose” accurate information “before the transaction is consummated” if (1) false information was previously conveyed with no “expectation that it would be acted upon,” and (2) the negotiator “subsequently learns” that his counterparty is “about to act in reliance upon” that false information.72 These rules suggest that a negotiator may engage in puffing only so long as those on the other side don’t indicate that they take it too seriously.
The third question that sometimes arises is: What should lawyers do when disclosure requirements conflict with obligations of client confidentiality? Recall that Rule 4.1(b) requires disclosure of material facts “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” (Italics added). The “unless” clause imposes a major limitation because Rule 1.6(a) forbids a lawyer from revealing confidential information without client consent, except if the disclosure is “impliedly authorized in order to carry out the representation.” The Comment to this Rule indicates that a lawyer is impliedly authorized to make a disclosure in negotiation “that facilitates a satisfactory conclusion,” but only if the client’s instructions do not limit that authority. If a client instructs the 726lawyer to keep certain information secret, Rules 1.6 and 4.1(b) together seem to require confidentiality.
However, as Chapter 6 notes, Rule 1.6(b) permits the disclosure of confidences in specified circumstances. Rule 1.6(b)(2), for instance, allows a lawyer to reveal client confidences “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.” Rule 1.6(b)(3) permits disclosure “to prevent, mitigate or rectify substantial injury to the financial interests or property of another” that has already occurred or is reasonably certain to occur because of client misconduct, “in furtherance of which the client has used the lawyer’s services.” In addition, pursuant to Rule 1.6(b)(6), a lawyer may disclose confidences “to comply with other law or a court order.” This exception arguably permits a lawyer to disclose confidences so long as she is doing so to avoid misrepresentation, which would count as compliance with “other law.” Whether the law of misrepresentation does or should trump the law of confidentiality in this way is, however, a question on which there is no clear agreement. The Comment to Rule 1.6 ducks it altogether, stating that whether any other law “supersedes Rule 1.6 is a question of law beyond the scope of these rules.”
When disclosure is not permissible under confidentiality rules, the Comment to Rule 1.6 makes clear that lawyers must withdraw from representation instead of allowing their services to be used to further a fraud. Rule 8.4(c) similarly provides that: “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Faced with a choice whether to have a lawyer withdraw midway through negotiations or to disclose material information, many clients will prefer disclosure, particularly if failure to do so could later void the transaction.
One final issue involving candor in settlement negotiations involves whether lawyers must correct statements made in depositions, or in discovery responses, when the lawyer learns the testimony or statement is untrue after-the-fact. Rule 30(e) of the Federal Rules of Civil Procedure provides that, if requested by either the deponent or a party to the litigation, a deponent has “30 days after being notified by the officer that the transcript or recording is available in which . . . to review the transcript or recording,” and, “if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.” According to one respected treatise, one issue that is “hotly contested” is whether this rule permits the deponent actually to change his or her testimony or whether it merely allows the deponent to correct typographical errors.73 Some federal courts allow the deponent to make 727significant changes; other courts, by contrast, permit only insubstantial alterations.74
Similarly, Rule 26(e) provides that a party who has made a written disclosure in response to a discovery request must supplement or correct it
in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing . . . .
a)In negotiations over a hotel’s breach of contract to host an organization’s conference, the attorney for the defendant hotel makes an initial settlement offer of $150,000. The lawyer for the plaintiff organization maintains that his client’s officers would never accept such an offer, that damages from the breach are likely to be much higher, and that any jury award would be more substantial. The lawyer actually believes that if the case went to trial, his client would receive a substantially smaller sum. Based on that advice, the plaintiff’s president has authorized the lawyer to settle for any amount over $100,000.
In responding to the initial offer, the plaintiff’s lawyer also represents that it would be impossible for his client to find another suitable hotel under such short notice, a statement that the plaintiff made at his deposition. When the lawyer later contacts his client to report the settlement offer, he learns that another hotel has orally agreed to host the conference, and that the agreement preceded the deposition. When he then calls the defendant’s attorney to accept the settlement, the attorney opens the conversation by asking: “How are efforts to mitigate the damages coming along?” The plaintiff’s lawyer responds: “Nothing definite yet.” The settlement is then finalized at $150,000.
b)In negotiating the sale of a ranch, the seller’s lawyer states that the property is an outstanding business opportunity and that its acreage and crop yield should produce at least $500,000 per year of income. The out-of-state buyer, who is unfamiliar with the layout of the ranch, relies on that representation, which significantly overstates the ranch’s profitability.
c)In lease negotiations, the lawyer representing the owner of a shopping center did not inform the lessee that the center was about to go into foreclosure. The lessee incurred significant expenses in getting the 728space ready for use, only to be evicted by the company that bought the property at the foreclosure sale.
d)In negotiations over the property settlement in an uncontested divorce, the husband and wife disagree about the value of certain assets, including real estate and stock in a family corporation. When reviewing the wife’s proposed settlement, the husband’s lawyer notices a $100,000 calculation error by opposing counsel that understates the wife’s alleged interest in jointly owned real estate. The lawyer brings the matter to the attention of his client, who believes that the understated figure is a more accurate reflection of the property’s true worth. Accordingly, the lawyer prepares a counteroffer replicating the error in a way that minimizes the likelihood of its discovery. On the mistaken belief that the husband has surrendered his challenge to the value of the real estate, the wife abandons her challenge to the value and ownership of the stock. Both parties ultimately accept a version of the husband’s counteroffer and sign a final agreement that recites the disposition of assets without specifying their value.
e)In negotiations over an eviction action, the tenant has no lawyer and is unaware that conditions she has complained about would establish housing code violations entitling her to a setoff against the rent. The attorney for the landlord advises her to accept his client’s final offer, which is a “generous” stipulated settlement that includes no setoff. The attorney further suggests that she should avoid looking doubtful in front of the judge, who must approve the agreement.75
f)If you were a lawyer in the four situations described by Lempert in the next excerpt, how would you respond?
References: Rules 1.2(d), 1.4, 1.6, 4.1, 4.3.
Larry Lempert, “In Settlement Talks, Does Telling the Truth Have Its Limits?”
“For truth itself does not have the privilege to be employed at any time and in every way; its use, noble as it is, has its circumscriptions and limits.”
—Montaigne
Law professor Charles Craver, who teaches courses and workshops on legal negotiation and settlement, likes to begin by saying, “I’ve never 729been involved in legal negotiations where both sides didn’t lie.” It tends to get some “shocked responses,” he admits.
Craver, a former litigator and labor law practitioner, does not stop there. He goes on to defend some lies in the course of settlement talks as perfectly proper.
To U.S. Magistrate Wayne Brazil, on the other hand, lying is anathema, and nothing about the settlement setting excuses it. “My opinion is, no lying,” he says, adding, somewhat wryly, “Strike one blow for naiveté.”
Whether naive or not, Brazil does seem to be in a minority. Not all lawyers are as unapologetic as Craver, but interviews with experts who have focused on negotiation and ethics, plus several litigators and judicial officers, indicate that most believe lying in settlement talks is not always prohibited (and that volunteering the truth is not always required).
In the 15 interviews, Inside Litigation asked what a lawyer ought to do in each of four hypothetical settlement situations.
Participants included nine law professors who have written on ethics, negotiation, or both; five experienced litigators, a federal circuit court judge, and a U.S. magistrate. . . . Most specified what they believed prevailing ethics rules would allow. A few answered in terms of what they would do but did not venture opinions on the formal ethics rules. In several instances, some noted that ethics rules might permit lying but that, personally, they would not do it. The lawyers also volunteered suggestions on tactics . . .
Situation No. 1: Lying About Authorized Limits
Your clients, the defendants, have told you that you are authorized to pay $750,000 to settle the case. In settlement negotiations, after your offer of $650,000, the plaintiffs’ attorney asks, “Are you authorized to settle for $750,000?” Can you say, “No, I’m not?”
(Two of the litigators well-known for representing plaintiffs were asked essentially the same question with the roles reversed, so that the plaintiffs’ attorney is asked whether he or she is authorized to settle for a specific amount.)
Of those willing to give a straight yes or no answer, six say no, you cannot say that. Seven say yes, you can—but all but one of these add that as a matter either of personal ethics or strategy, they would not give such an answer.
“Outright lying always is out of bounds,” according to David Luban. . . . It’s not that one can never be misleading in the admittedly adversarial game of negotiation, he explains. But the way the process works, when one side makes an evasive statement, the other side can ask a question to clarify that position. A flat, declarative statement sends no signal that clarification is needed. “People have to be able to rely on flat-730out declarations,” Luban says, or the process breaks down or, at best, becomes “incredibly time-consuming.”
Geoffrey Hazard Jr., the author of the ABA Model Rules, agrees that “you’re allowed to make an evasive statement.” He too says that an outright lie in Situation No. 1 would violate Rule 4.1. . . .
Litigator Jacob Stein, however, argues that this is one of those statements, referred to in the comment to Rule 4.1, that “ordinarily are not taken as statements of material fact.” If the opponent says he or she is not authorized to pay more, “I don’t rely on that,” says Stein. “In the realm of negotiation, the issue is whether there’s reliance.”
Several participants contend that the ethics rules would permit the lie but their personal standards would not. Stein is in this camp. So is James White of the University of Michigan. “A flat denial of that sort”—although permissible—“makes me uncomfortable. It’s questionable morally,” White says. In the view of Judge Alvin Rubin, a representation about settlement authority should not be considered a representation of fact under the ethics rules. But he, too, says, “Personally, I would avoid the question rather than answer untruthfully.”
Craver, on the other hand, not only believes that lying is permissible in Situation No. 1 but says, “I don’t have any hesitancy in lying about my authorized limits”; he has done it before and would do it again, he says. Lying is an acceptable response to the inquiry, in his view, because “the other side has no right to that information.” . . .
Most of those interviewed point out that a negotiator who is asked about authorized settlement limits can dodge the question or deflect it in a variety of ways. “The way to avoid [the problem] is to think ahead and have answers ready,” says White. He recalls, for example, negotiators who would simply laugh and say, “You don’t think I’m going to tell you answers to questions like that.” Or the negotiator can answer the question with a question, White adds: When the plaintiff’s lawyer asks, “Are you authorized to settle for $750,000,” the defendant’s lawyer asks, “Are you willing to come below $750,000?” According to Craver, treating the question as an offer sometimes can be an effective strategy: “I appreciate your movement; it’s in the right direction, but $750,000 is still too much.” Ronald Rotunda of the University of Illinois suggests responding, “I’ll bring back to my client the best offer I can get.”
The interviewees agree that whatever response the lawyer chooses, consistency is important. If you refuse to answer questions about authorized limits in the course of the settlement talks, you must always refuse, or the exception will be obvious to the opponent.
A no-lying rule, Craver complains, means that the negotiator would always have to swear off the “limited authority” technique—a Mutt-and-Jeff kind of approach that casts the negotiator as a nice guy whose flexibility is limited by a tough-minded client. “The negotiator could never say, ‘I’m sorry, I’m just not authorized . . . ,’ even when the 731statement is true, because he or she would be forced to tell the truth—and cut off a possible better deal for the client—when the opponent probes further and hits on the actual authorized figure. Yet, ‘limited authority’ is a very, very common technique,” Craver says. And saying, “No, I’m not authorized,” he notes, is much more forceful than saying, “You know you can’t ask me that.”
Some experienced practitioners, however, eschew that technique anyway. For one thing, they say, it would imply a lack of influence with the client that the opponent would not find credible. Says plaintiffs’ lawyer Leonard Ring, “I don’t use the word authorize. I have a lot of persuasion with my client.”
(Invoking limited authority—at the $750,000 level, for example—can pose a slight practical problem if $750,000 turns out to be the best figure you can get, and you want to settle. You then have to discover, in a phone call, perhaps, that your client has been “persuaded after all.” Whether you actually phone the client or call your spouse to discuss grocery shopping, as far as Craver is concerned, does not raise an ethical issue. “I would have no qualms lying about the phone call,” he says.)
Situation No. 2: Lying About an Injury
You represent a plaintiff who claims to have suffered a serious knee injury. In settlement negotiations, can you say your client is “disabled” when you know she is out skiing?
The score: no, fourteen; yes, one. This question was the only one of the four that yielded a solid consensus. . . .
Situation No. 3: Exaggerating an Injury
You are trying to negotiate a settlement on behalf of a couple who charge that the bank pulled their loan, ruining their business. Your clients are quite upbeat and deny suffering particularly severe emotional distress. Can you tell your opponent, nonetheless, that they did?
The score: no, eight; yes, five (with two not answering directly).
Brazil says no. “Lawyers should try to get for clients what they need, and not more,” he argues. “Measuring our value as lawyers by how much we get for the client,” he adds, is an “insidious trend” and a “source of great ethical strain on the system.”
Some see No. 3 as a closer question but believe that pushing the emotional distress element in settlement talks would be an unacceptable misrepresentation of fact. Says Rubin, “It moves closer to the permissible [than No. 2] but does not yet reach it.”
But several lawyers who find the assertion of disability in No. 2 to be unethical do not object to the assertion of emotional distress in No. 3. Obviously, some distress has occurred—“if they didn’t care at all, there wouldn’t be a legal matter,” says Craver. “I’m embellishing the concern.” White agrees that exaggeration of the degree of pain experienced by a client is “well within the range of puffing.” The fundamental question, 732says White, is “what are your and my legitimate expectations [as opposing negotiators]?” The opponent expects exaggeration of pain, White believes.
Explaining further, White draws an analogy to sales law, which distinguishes between puffing and making a warranty by asking whether reliance on the statement would be reasonable. In this analogy, lawyers are sophisticated buyers and sellers: the defense lawyer is a buyer, the plaintiff’s lawyer, a seller. “Because they’re sophisticated, a fair amount of puffing is permitted without it being a warranty,” White says. “It’s like two car dealers” negotiating the sale and purchase of a car. (Independently, Rotunda arrives at a similar analogy but draws a different conclusion. Contending that the exaggeration in Situation No. 3 is improper, Rotunda observes, “If lawyers want to be like used car salesmen, this is a good place to start.”) . . .
Rex Perschbacher of the University of California agrees that reasonableness of reliance is one criterion—working in combination, he believes, with the degree of specificity. That is, as questions become more specific, the negotiator has less freedom to lie because the opponent’s reliance on the answer becomes more reasonable. Thus, Perschbacher says no to No. 1 and no to No. 2, but would allow the claim for emotional distress in No. 3.
Several who say the lawyer in No. 3 cannot make an outright assertion about emotional distress do acknowledge that the issue can be raised in a more oblique way. Hazard, for example, would let the negotiator say that cutting off a loan is the kind of act that can produce serious distress. “You can suggest that the other party ought to think about it, with a carefully chosen phrase,” says Hazard. Or you can ask a rhetorical question, says Luban: “Wouldn’t you feel as though the world has caved in on you?”
Stein, who says no to No. 3, adds that the assertion of emotional distress in that situation would be unwise. “A good negotiator would ask for medical reports, and you wouldn’t have any,” he says. McNamara, too, questions the effectiveness of exaggeration. “Stick to the facts,” he advises. “Somewhere or other there are pieces of paper that make it clear what the facts are.” Surely, he says, you can point out that “one of the items the jury can consider is not just the plaintiffs’ loss but the effect on these people.” And that, he says, “is exactly how far I’d take it. . . . You don’t want to hurt the client’s case . . . by losing credibility as an advocate.”
Situation No. 4: A Mistaken Impression
In settlement talks over the couple’s lender liability case, your opponent’s comments make it clear that he thinks the plaintiffs have gone out of business, although you didn’t say that. In fact, the business is continuing, and several important contracts are in the offing. You are on 733 the verge of settlement; can you go ahead and settle without correcting your opponent’s misimpression?
The score: no, four; yes, nine (with two not answering directly).
The participants agree that you cannot say anything to further or ratify the misimpression. But beyond that point, disagreement sets in.
Hazard says no on the ground that the ethics rules incorporate the law of fraud—“and the law of fraud,” adds Hazard, “is more exacting than most lawyers think.” The opponent’s belief that the client is out of business is “a manifest misapprehension that goes to the bargain itself,” Hazard says. McNamara, too, says, “It does not pass the smell test with me. . . . [In this situation], failure to speak up is fraud.” But White disagrees with this conclusion, referring again to the bargaining between two car dealers—there is no obligation under the common law of fraud to correct the savvy dealer’s error, White says.
Interestingly, Craver, outspoken in his support for lying in Situation No. 1, finds No. 4 so difficult a situation that he cannot give a definite answer. If he thought that correcting the misimpression would not hurt the client, he says, he would do it. But if it looked like the settlement would fall apart on that issue alone, he’s not so sure. By contrast, Luban—who flatly says no to the outright lie in No. 1—generally approves keeping quiet in No. 4.
The difference for Luban lies in his rule that flat-out declarations have to be true—No. 4, obviously, involves no such declaration. “It’s not my job to do their job for them,” Luban says of the opponent in No. 4, “as long as my word isn’t on the line.” Similarly, says plaintiffs’ lawyer David Shrager, “I’m not in litigation to educate the opponent.” . . .
Several interviewees who say the misimpression need not be corrected add that there are factors that could tip the answer [the] other way. Perschbacher would want to consider whether circumstances beyond those stated in the hypothetical, give rise to a claim that the opponent is placing particular reliance on the negotiator who keeps quiet. For example, Perschbacher says, if the misimpression relates to a fact that the opponent cannot determine on his own, then failure to correct his misimpression might be improper. Luban agrees, and adds that the consequences for the opponent probably should be weighed in as well.
Luban cites a Minnesota Supreme Court case from 1962 to show what he means about consequences. In Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), a car crash had led to a personal injury suit. The defense doctor examined the plaintiff and discovered a potentially fatal medical problem that neither the plaintiff, the plaintiff’s lawyer, nor the plaintiff’s doctor knew about. The defense doctor revealed his finding to the defendant’s lawyer, who settled the case without mentioning that the plaintiff could drop dead any second (presumably, that fact would have affected the settlement value adversely from the defense point of view). The defendant’s lawyer was not responsible for the plaintiff’s 734misimpression about the value of the case. “But it’s perfectly clear that any lawyer with a grain of conscience would tell the plaintiff he had to see a doctor. You don’t let somebody drop dead to save your client some money,” Luban says. . . .
In Spaulding v. Zimmerman, the Minnesota court did not say the defendant’s lawyer had acted unethically, but it did void the settlement, as the plaintiff had asked it to do. As a practical matter, that points to a problem with keeping quiet in Situation No. 4, as several interviewees emphasize—if an attack on the settlement ensues once the opponent learns the facts, your client might not have the peace he thought he was buying. “That’s one practical reason for taking the ethical high road,” says Brazil. But Stein, who says that correction of the misimpression is not required, believes that a well-crafted release would probably foreclose an attack on the settlement. . . . Not surprisingly, given the range of reactions to the hypotheticals, experts approach the issue of truth in the settlement process from a variety of perspectives. “I don’t see why the law should allow attorneys to tell a bald-faced lie,” says Rotunda. As he sees it, the comments to Rule 4.1, which forgive certain lies because of “generally accepted conventions in negotiation,” are an attempt to “slice the baloney [too] thin.”
Others attach more weight to the dynamics of the negotiation process. “I can’t expect the opponent to reveal all his information to me,” says White. “It’s appropriate for him to try to get me to believe some things that are not true.” Negotiation, according to McNamara, becomes “orderly capitulation” unless the negotiator misrepresents to some degree.
Hazard describes negotiation as a process of “communicating without giving away the store.” The communication occurs through the exchange of incomplete signals; it “necessarily entails an exploratory process” and “a certain amount of acting,” Hazard says.
At the same time, countervailing forces exist—and not just moral or religious ones—in favor of candor. One such force is reputation. Legal practice would be cumbersome indeed if other lawyers were never willing to take you at your word, Craver notes. “There has to be a level of candor if one is going to practice law,” he says. Moreover, he observes, candor can be a good tactic. In this regard, he says a possible approach to Situation No. 4 would be to correct the misimpression and build on the boost in credibility with the opponent that such a step would bring.
McNamara has another reason to tell the truth—he knows he would not be a good liar. “I can’t be my most convincing when I’m lying,” he says.
1.How would you respond to the hypothetical situations in Lempert’s article? Do any of these examples involve misrepresentations within the 735meaning of Rule 4.1? If, under this Rule, statements about settlement authority are “ordinarily” not viewed as statements of fact, what is meant by “ordinarily”? Consider ABA Ethical Guideline § 4.1.1, Committee Notes, which identify factors relevant to whether a statement should be considered one of fact, such as the parties’ past relationship, the opponent’s apparent sophistication, the phrasing of the statement, and the negotiating practices of the community. A California Bar Ethics Opinion concluded that the statement “Plaintiff needs $375,000 if you want to settle this case,” when the actual bottom line number is $175,000, constituted “allowable ‘puffery’ rather than a misrepresentation of fact.”76
Why are misrepresentations about settlement authority or related matters justifiable? As the examples from the excerpt above suggest, experienced practitioners often sidestep direct inquiries on these issues with responses such as “I’m not free to disclose that” or “I would advise my client that the case justifies $20,000.” Would it be preferable to require that lawyers avoid direct misstatements of their clients’ willingness to accept certain settlements?
Two subsequent studies replicated Lempert’s questions. They found that most practitioners followed the ABA Formal Opinion 06–439, which suggests that a lawyer can deflect questions about settlement authority but cannot lie if directly asked.77
What about other forms of bluffing, such as false claims by a buyer that he has seen a better price in a discount catalogue, or by a seller that she has another buyer willing to pay the full asking price?78 What about false claims about the defendant’s insurance policy limit, or plans to file for bankruptcy in the absence of a defense verdict?79 Those who argue that such misrepresentations are harmless generally assume that the opposing party will recognize bluffing or “puffing” for what it is. But if that were always true, the practice would also be ineffective. Bluffing and puffing continue because sometimes they work, and some opponents are deceived. To some commentators, parties dealing with a lawyer should not need to exercise the same degree of caution as they would if trading at a bazaar.80 What is your view? How much prudence is it reasonable to expect concerning such statements?
7362.Game theorist Thomas Schelling writes:
A bargain is struck when somebody makes a final, sufficient concession. Why does he concede? Because he thinks the other will not. “I must concede because he won’t. He won’t because he thinks I will. He thinks I will because he thinks I think he thinks so. . . .” There is some range of alternative outcomes in which any point is better for both sides than no agreement at all. To insist on any such point is pure bargaining, since one always would take less rather than reach no agreement at all, and since one always can recede if retreat proves necessary to agreement. Yet if both parties are aware of the limits to this range, any outcome is a point from which at least one party would have been willing to retreat and the other knows it! There is no resting place.81
If Schelling is correct, it will be difficult for negotiators to reach agreement unless they have managed to keep their bottom lines hidden from each other. Total candor becomes an obstacle to agreement, even when both sides want to agree. From this perspective, negotiation is like the game of chicken. It ends when one side has successfully bluffed the other, and bluffing is impossible if either party knows his opponent’s settlement point. What does this analysis suggest about obligations of candor and disclosure on the part of negotiators? Under what circumstances would full disclosure of relevant facts assist or impede the negotiation process? What interpretation of existing rules would best serve societal interests?
3.Is it unethical for a negotiator to make representations that are highly misleading, even though they are not literally false? How would you assess the conduct of the plaintiff’s lawyer in Problem 1(a)?
The case on which Problem 1(a) is based arose during the 1960s, when the Washington, D.C. Mattachine Society planned what it billed as the first national conference to focus on gay and lesbian rights. The Manger Hotel agreed to host the conference with knowledge of its subject. Then, two weeks before the event, after invitations had been mailed, management in the hotel chain’s home office ordered cancellation of the agreement. Monroe Freedman, the Society’s lawyer, later defended his conduct:
Was anything definite about mitigation at that point? Is anything ever definite in this life? After all, the Mattachine Society had thought that the deal with the Manger was definite, and it turned out that it wasn’t. . . . The statement about mitigation wasn’t a flat-out denial: it was equivocal—an evasion that a careful listener could have picked up on. “What do you mean ‘nothing definite’?” he might have said. . . .82
According to Freedman, the new offer of a hotel site was confidential information and, as long as he did not make a false statement of material fact, he did not need to disclose it under Rule 4.1. Do you find his reasoning persuasive? What would you have done if you had been in Freedman’s shoes?
7374.Are the claims in Problem 1(b) about the ranch’s profitability statements of material fact? Should a buyer be entitled to rely on such statements? Should it matter whether information about the property’s recent financial performance was accessible to the buyer?83
5.On the facts of Problem 1(c) about the lease negotiations, the New Jersey court held that the lessee’s lawyer may have committed malpractice, and that the lessor’s lawyer may be liable as well. Under the court’s analysis, an attorney has a duty not only to represent a client “effectively and vigorously” but also to “act fairly and in good faith.” At a minimum, the lawyer had an obligation to counsel his client to disclose the impending foreclosure and, if the client refused, to withdraw from representation under Rule 1.16. In the court’s view, the lawyer was in a “difficult position,” but “the practice of law is not easy.” Davin v. Daham, 746 A.2d 1034 (N.J. Super. App. Div. 2000). Is that your view? Compare ABA Ethical Guidelines § 2.3 (providing that lawyers’ negotiating conduct “should be characterized by honor and fair dealing”), with id. § 4.1.2 Committee Note (indicating that lawyers generally have no obligation to make disclosures unless silence would constitute fraud).
6.Would it be unethical for a personal injury lawyer to settle a claim without disclosing that his client had died?84 Why and under what circumstances?
7.Problem 1(d), about the calculation error in the divorce settlement documents, is based on Stare v. Tate, 21 Cal. App. 3d 432, 437 (1971). There, the court noted:
The mistake might never have come to light had not the husband desired to have the exquisite last word. A few days after [the wife] had obtained the divorce he mailed her a copy of the offer which contained the errant computation. On top of the page he wrote with evident satisfaction: “PLEASE NOTE $100,000.00 MISTAKE IN YOUR FIGURES. . . .” The present action was filed exactly one month later.
The court reformed the agreement under § 3399 of the California Civil Code to conform to the wife’s understanding. The Code provides:
When through fraud or mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.
What would you have done as counsel for the husband? If you had consulted your client and he had refused to authorize disclosure of the mistake, how would you have responded? What factors would have been most 738relevant in guiding your conduct? Would it have been appropriate to consider the likely effect of nondisclosure on your reputation or the fairness of the underlying divorce settlement?
8.Must lawyers seek their clients’ approval before correcting a scrivener’s error? In Informal Opinion 86–1518 (1986), the ABA’s Standing Committee on Ethics reviewed a situation in which a lawyer discovered that the final draft of a contract prepared by opposing counsel did not contain a material, previously disputed, provision. In the Committee’s view, the lawyer should contact opposing counsel to correct the error and had no obligation to obtain the client’s permission. Rule 1.2(a) provides that lawyers “shall abide by a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued.” The Comment to the Rule acknowledges the lawyer’s responsibility for technical and strategic issues. Rule 1.4 requires lawyers to explain matters “reasonably necessary to permit the client to make informed decisions regarding the representation.” Under the Committee’s analysis, once the client had accepted the disputed provision, no informed decision remained to be made. In addition, the Committee relied on general prohibitions on conduct involving dishonesty, fraud, deceit, or misrepresentation, contained in Rule 8.4(c) and the provision in Rule 4.1(b) that lawyers shall not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a fraudulent act by a client unless the information is privileged. Accord ABA Ethical Guideline § 4.3.5 (providing that it is unprofessional for a lawyer to knowingly exploit a drafting error). Do you agree with the Committee’s analysis? Does it follow that a knowing failure to disclose an error would constitute fraud and provide grounds for discipline?
9.Suppose that in Problem 1(d) the attorney had not noticed the scrivener’s error until the husband showed him the letter about to be sent to the wife. How should the attorney have responded? If the attorney had persuaded the husband not to mail the letter or disclose the error, and that fact later came to light, could the attorney be subject to civil liability or disciplinary sanctions?
10.How should lawyers deal with unrepresented, unsophisticated adversaries? Is it enough for lawyers in cases like 1(e) to comply with Rule 4.3, which requires them to avoid implying that they are disinterested; to correct misunderstandings concerning their role; and to refrain from giving legal advice when the lawyer “knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client”?
An early draft of the Model Rules would have required lawyers to avoid “exploiting unrepresented parties’ ignorance of the law or the practices of the tribunal.”85 Would you support such a rule? How could it be enforced? Did the lawyer in Problem 1(e) behave ethically? If not, how could such behavior be prevented or remedied?
73911.Are half-truths equivalent to lies? Consider In re A., 554 P.2d 479 (Or. 1976), in which a client testified at a deposition that his mother was “in Salem.” He neglected to mention that she was dead and buried in Salem, in order to suggest that she was still alive and potentially in need of his financial support. Faced with this misleading testimony, the Oregon court believed that the client’s attorney should have withdrawn, because in the court’s view, the half-truth was fraudulent.
Similarly, in a recent Australian case, the Legal Services Commissioner for Queensland disciplined a barrister who did not reveal, when settling a personal injury case, that he had recently learned that his client was seriously ill with cancer and unlikely to have the 27-year life expectancy which he had previously claimed.86
By contrast, in a landmark Supreme Court case on perjury, Bronston v. United States, 409 U.S. 352, 354 (1973), the following colloquy occurred:
Q.Do you have any bank accounts in Swiss banks, Mr. Bronston?
A.No, sir.
Q.Have you ever?
A.The company had an account there for about six months, in Zurich.
Although Bronston’s answers were literally true, he failed to disclose that he himself had used a personal account in a Geneva bank for five years between 1959 and 1964. Still, the Supreme Court overturned his conviction for perjury on the ground that in an adversary proceeding, his questioner had the responsibility to smoke out Bronston’s deception.87
These cases raise the following questions: Should the same standards apply in negotiations and in adversary proceedings? What are the similarities and differences between negotiations and adversary proceedings? Was the court right or wrong in In re A.?
12.Should negotiators who are acting as agents for others have some duty to protect themselves from deceptive nondisclosures? Research on negotiation ethics suggests that a range of factors influence the likelihood of deception, including personal characteristics, situational incentives, and the relationship between the parties. In general, parties are more willing to deceive by omission than commission, so prudent negotiators will ask as many specific questions as possible, particularly in circumstances in which they have no ongoing relationship.88
74013.As the discussion has underscored, the bargaining process involves ethical as well as legal considerations. In this, as in other contexts, the law and morality of lawyering are not necessarily coextensive. Legal doctrine and bar disciplinary rules often establish only minimal requirements due to the costs of enforcement, the problems of proof, the need for stability in transactions, and the consequences of widespread noncompliance. Accordingly, legal requirements do not exhaust the ethical considerations that are relevant in shaping negotiation behavior. Lawyers also have an individual interest in maintaining their own reputations and a shared interest in supporting standards of good faith and fair dealing on which any efficient bargaining process depends. The world of legal practice, like society more generally, relies on a “background of trust that makes sharp practices conspicuous and jarring,” as well as counterproductive in any context involving ongoing relationships.89
The late federal Judge Alvin Rubin puts the point directly:
It is inherent in the concept of professionalism that the profession will regulate itself, adhering to an ethos that imposes standards higher than mere law observance. Client avarice and hostility neither control the lawyer’s conscience nor measure his ethics. Surely if its practitioners are principled, a profession that dominates the legal process in our law-oriented society would not expect too much if it required its members to adhere to two simple principles when they negotiate as professionals: Negotiate honestly and in good faith; and do not take unfair advantage of another, regardless of his relative expertise or sophistication.90
Do you agree?
14.Many attorneys seem to ignore Judge Rubin’s principles. In one study, some 730 lawyers were given a hypothetical in which their client was suing a former girlfriend for sexual transmission of a deadly disease. Although the client had tested positive for the disease, he later learned that the test was false and that he was healthy. Subsequently, the client asks his lawyer not to reveal that fact in pre-litigation settlement discussion. Almost one-fifth of the lawyers (19 percent) would agree to the client’s request and another 19 percent were unsure. As the authors note, nondisclosure under these circumstances would generally constitute fraud.91 If you had been the man’s lawyer, would you have agreed to his request? Why or why not?
15.Law professor Donald Langevoort offers an economic justification for treating “half-truths” as deceptive:
Why do we have law barring affirmative misrepresentations in the first place? Why don’t we say that reasonable people should always do their own “due diligence” investigation rather than rely on information provided by someone with an obviously conflicting 741interest? . . . [T]he orthodox answer is that the law of fraud is efficient. It allows the less informed party to forego the costly and duplicative process of factual investigation and information discovery, thereby reducing transaction costs. The law offers a credibility bond for the reliability of factual representations by the informed party.
It is not at all hard to extend this same logic to the half-truth. That is, it facilitates efficient transacting to say that the law will offer a credibility bond when a person speaks not only for the technical accuracy of the statement but also its natural and normal implication as a matter of ordinary communication (putting aside any expectations created by law). Language is inherently imprecise; it is not functional to force people to stop and analyze statements to see if there is some subtle limit or ambiguity that must be clarified. . . . A certain level of protection for reasonable inferences is thus appropriate. . . .
This strikes me as a helpful approach, but I want to consider a significant refinement. . . . [T]here are some contexts [such as the hearing in Bronston v. United States, supra] in which the half-truth doctrine has little necessary place. If there is in fact little or no trust between two parties—a truly adversarial setting—it is difficult to justify the doctrine at all. At least ex ante, I suspect that in these settings parties will often prefer a default rule of mere technical accuracy, with its reduced risk of ex post litigation. While I have seen no explicit statement in the case law that the half-truth doctrine adjusts downward to reflect a lack of trust between the parties, it should.
Conversely, we should expect that negotiations characterized by a high degree of trust should lead to an upward adjustment: a broad half-truth doctrine, one with little privilege to conceal once a matter is addressed at all.92
By contrast, Professor Alan Strudler argues that even in some less adversarial business negotiations, half-truths should be permissible. In his view, negotiators who have invested time and effort in acquiring useful information should be able to capitalize on their efforts. Strudler proposes a “deserved advantage principle: other things being equal, the more value one brings to the bargaining table, the more one may fairly insist upon as return.”93 If, for example, the buyer’s hard work has unearthed information indicating that the seller’s property is worth more than the seller thinks it is, the buyer should not have to disclose the information. Strudler notes:
The commercial world teems with . . . intermediaries or middlemen, from jobbers and distributors to stockbrokers and real estate agents. A financial intermediary is a bargain hunter; 742whether searching garage sales for impressionist works of art or inexpensive farm land for mineral deposits, she seeks to buy low and sell high. A bargain hunter’s job involves exploiting a seller’s lack of knowledge.94
Are Langevoort’s and Strudler’s proposals consistent? If not, which is more convincing? Consider negotiating experts’ concern that reinforcing an ethic of non-disclosure will lead too many negotiators to lose credibility and miss opportunities for mutually advantageous agreements. Richard Shell argues instead for “information-based bargaining” in which negotiators try to get as much reliable knowledge about the situation and other party as possible. That will enable participants to “think outside the box” and to devise agreements that fall within a “zone of overlap” of parties’ settlement points.95
A form of dispute resolution that has become increasingly popular over the last two decades is mediation. As defined by Standard I of the ABA’s Model Standards of Practice for Family and Divorce Mediation (2001), mediation is a process that “relies upon the ability of participants to make their own voluntary and informed decisions.” In this process, the primary role of a mediator is “to assist the participants to gain a better understanding of their own needs and the needs and interests of others and to facilitate agreement among the participants.” Mediation serves a different function than arbitration, in which a neutral third party imposes a resolution. Rather, in the words of Lon Fuller, the “central quality of mediation [is] its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship.”96 The strengths and limitations of mediation as a form of alternative dispute resolution are explored in Chapter 13. Discussion here focuses on the ethical issues that confront lawyer-mediators.
Mediation generally takes one of three forms. “Facilitative” mediators stress the importance of mediator neutrality and party autonomy. Their goal is to help parties develop their own problem solving capacity.97 “Evaluative” mediators believe part of their role is to help parties assess the strengths of their positions and potential settlements, based on law and practice.98 “Transformative” mediators focus on personal growth and enabling the parties to develop a better recognition 743of their own goals, values, and capacities, as well as greater empathy for the concerns of others.99
Mediation can occur to resolve disputes of any sort but is particularly common in the labor, employment, and family law contexts. Family courts often recommend and sometimes require divorcing parties to participate in mediation to work out the details of property and custody settlements. These days, an increasing number of lawyers have become mediators, bringing the ethics of mediation to the fore.
In disputes involving legal issues, lawyer-mediators can promote agreement by helping the parties minimize conflict, understand their rights, explore underlying problems, and draft a legally enforceable agreement. Lawyers can also represent one of the parties during mediation sessions or review agreements afterward. Standard VI of the ABA’s Standards of Practice advises consultation with an attorney before concluding an agreement. But engaging separate attorneys imposes some of the financial costs that mediation is often intended to avoid. Moreover, the participation of counsel may compromise parties’ control and autonomy, pushing them into excessively adversarial bargaining positions. Having a lawyer later review a mediated agreement can be equally problematic. An attorney who has not participated in the negotiations, who does not know what facts came out or what logs were rolled, often cannot judge the fairness of the resulting agreement. In determining whether to obtain independent legal advice, parties need to consider whether they are willing to accept the additional expense and risk of unraveling part of a mediated settlement.
1.The Lawyer’s Role in Mediation
When can a lawyer serve as mediator, and what ethical rules apply? Some state bar ethics committees initially prohibited lawyers from mediating certain types of disputes, such as divorce. Underlying these restrictions were concerns about conflicts of interest and inadequate protection for confidentiality. Other bar committees barred most lawyer-mediators but authorized divorce mediation on the theory that the lawyer represents neither party. A third view, put forth by many experts, was that a lawyer-mediator represents both parties.100 The Model Rules take no position on that issue. Rule 2.4(a) only defines the term “third-party neutral,” and subpart (b) requires a lawyer to “explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.” Much rides on this distinction. If a lawyer is jointly representing both parties in mediating their dispute, then that 744lawyer owes duties to both clients, and issues related to the treatment of confidentiality and the waiver of conflicts must be worked out in advance. As a third-party neutral operating under Rule 2.4, a lawyer does not owe specific client duties, but must nonetheless take care to make sure that the parties to the mediation understand the nature of the lawyer’s role and the fact that certain protections, like the attorney-client privilege, do not apply.
In comparing the different bar approaches, most experts view the flat ban on lawyer-mediators in divorce cases as unduly restrictive. In most uncontested divorces, at least one party goes without legal representation. Where parties’ resources are limited, joint access to a single attorney-mediator may be preferable to leaving one spouse unrepresented. Whether mediators are nominally “representing” both or neither party seems less critical than the concrete obligations that the relationship entails, such as requirements of impartiality and informed consent.
2.Standards Governing Mediation
In addition to the general guidance offered by the Model Rules, all states have adopted certain standards to govern the mediation process. The ABA, the American Arbitration Association, and the Association for Conflict Resolution have jointly prepared Model Standards of Conduct for Mediators, revised in 2005. The ABA and National Conference of Commissioners on Uniform State Laws have also promulgated a Uniform Mediation Act, which has been adopted in some states.101 Other organizations, meanwhile, have also developed standards for mediation or alternative dispute resolution generally, or standards for particular areas of practice. In 2001, for example, the ABA adopted Model Standards of Practice for Family and Divorce Mediation, which we will discuss below.
Although these standards differ in some respects, most set forth similar provisions concerning impartiality, conflicts of interest, and confidentiality. For example, the ABA’s Model Standards of Practice for Family and Divorce Mediation, require mediators to:
The ABA’s Standards further advise that a lawyer may mediate disputes involving past or present clients, provided that all parties give their informed consent and the lawyer has appropriate qualifications and is able to be impartial. In contexts involving family issues, mediators should have knowledge about the relevant law and the mediation process, as well as the law governing domestic violence and child development, abuse, and neglect.103 The parties’ written agreement to mediate a dispute should include provisions regarding fees, and mediators should not make charges contingent on the resolution of the matter.104
Under all of these standards, a mediated negotiation is still a negotiation. Accordingly, it presents many of the same ethical problems such as confidentiality and unequal bargaining power that arise in other bargaining contexts.
3.Confidentiality in Mediation
In contexts of joint representation, the attorney-client privilege does not typically apply between the joint clients; nor does it protect disclosures to non-lawyers (unless the non-lawyer is acting as a lawyer’s agent) or to lawyers who do not “represent” either party. Nevertheless, there is a strong sense that what is said in mediations should be confidential. Reflecting this sense, the Uniform Mediation Act, Sections 4 and 5, and many analogous state codes, allow mediators and/or parties to assert a privilege against disclosure except under specified conditions, such as where a person has used mediation to plan, commit, or conceal a crime.105 Furthermore, Rule 408 of the Federal Rules of Evidence and its 746state analogues hold that statements made in settlement negotiations, including mediation, are not admissible in subsequent proceedings.106
So, too, virtually all states have enacted some form of confidentiality privilege for mediators. The scope of these protections varies.107 The Model Standards of Conduct for Mediators, Section V, provides that mediators should not disclose any information that parties expect to be confidential without their express permission unless required by law or other public policy. Practices vary when parties’ expectations of privacy conflict with strong societal interests. For example, how should a mediator respond in a land-use proceeding regarding development of a playground if she learns from one of the party’s employees that toxic material is buried underneath the proposed site? Some commentators believe that confidentiality is required if the mediator cannot persuade the party to disclose the problem. Their premise is that people won’t hire a mediator who sees his or her role as protecting the “greater good.” Others believe that the public would be outraged by mediators who allowed a public health disaster to develop under their watch.108 Some states require disclosure in certain circumstances, such as when there is evidence of child abuse and neglect. Others make disclosure permissive.109
A fundamental question for mediators is how to balance concerns of fairness and impartiality, particularly in light of inequalities in bargaining power. Such inequalities may involve resources, expertise, knowledge, and the ability and willingness to inflict emotional pain. In some instances, as discussed in Subpart 5 below, the power disparities may be so great as to make mediation inappropriate. State codes have adopted differing, sometimes internally inconsistent, standards, and practitioners are divided.110
On one end of the spectrum are mediators who insist on remaining neutral, however skewed the process or outcome. For example, in labor and commercial contexts, mediators “regularly deal with parties who are of unequal power, and most have no problem with this inequality. For [these] mediators, the primary function is to have the parties come to an agreement.”111 Such neutrality has the advantage of preserving mediators’ credibility and maximizing the chances that participants with 747superior bargaining leverage will agree to mediated solutions. As Christopher Honeyman notes, there are practical constraints on mediators’ abilities to reduce power disparities or to protect unrepresented interests: “If mediators ignored the ‘real world’ and attempted to base all settlements on reason and brotherly love, stronger parties would obtain little benefit from mediation and would soon avoid it.”112
On the other end of the spectrum are mediators who intervene in order to balance power and to ensure that the process, as well as the result, meet some minimum standards of fairness. For example, mediators may interrupt intimidating negotiation patterns; meet with the parties separately; structure the bargaining session to equalize participation; provide pre-mediation training to improve participants’ negotiating skills; discuss strategies with each party to address power disparities; or propose that the disadvantaged party seek therapy or separate legal representation.113 Most state codes on mediation ethics make no explicit reference to substantive fairness. Others prescribe withdrawal to avoid outcomes that are “fundamentally unfair” (Georgia) or that are “grossly unjust” (Alabama).114 Under Standard XI of the ABA’s Model Standards of Practice for Family and Divorce Mediation, mediators “should consider suspending or terminating the mediation” if . . .
4.the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable;
5.a participant is using the mediation to further illegal conduct;
6.a participant is using the mediation process to gain an unfair advantage. . . .
What constitutes unfairness or unconscionability in a particular case is, however, often open to dispute.
Mediators themselves differ about what might constitute such injustice—and also whether, when considering whether an outcome is appropriate, only the parties’ goals and interests should be considered, or whether broader societal interests should also be addressed. In a celebrated exchange, Lawrence Susskind and Josh Stulberg debated this issue in the context of environmental mediation. Susskind argued that it was not enough to promote balanced participation. Rather, the mediation’s success must also be judged in terms of the fairness and 748stability of agreements that are reached. Further, Susskind insisted that where strong public interests were implicated, environmental mediators should seek to ensure that all stakeholders are adequately “represented and protected”; that “agreements are as fair and stable as possible; and . . . that agreements reached are interpreted as intended by the community at large and set constructive precedents.”115 By contrast, Stulberg argued that nothing in the mediator’s “obligations of office” equips or entitles him to assume the role of “social conscience, environmental policeman or social critic.”116 For a mediator to assume responsibility for the fairness of the outcome, Stulberg insisted, is to abandon the neutrality that is essential to their function.
Underlying these issues are more fundamental questions about the meaning of “neutrality.” To some, neutrality requires mediators to prevent their own values from biasing the process. To others, neutrality requires structuring a process that will ensure meaningful participation and promote informed decisionmaking and a reasonable balance of power.117 Model Rule 4.5.6, proposed by the Commission on Ethics and Standards in ADR, attempts to strike a balance. It provides that:
c)The third party neutral should use all reasonable efforts to conduct the process with fairness to all parties. . . .
d)The third party neutral should make reasonable efforts to prevent misconduct that would invalidate any settlement. The third party neutral should also make reasonable efforts to determine that the parties have reached agreement of their own volition and knowingly consent to any settlement.
The Comment to the proposed Rule adds:
[2] . . . While some have suggested that third party neutrals should bear some moral accountability or legal responsibility for the agreements they help facilitate, these Rules do not make the third party neutral the guarantor of a fair or just result.
As Chapter 14 indicates, online dispute resolution has grown dramatically over the last two decades, led by sites that handle disputes arising in electronic commerce. The most popular site manages some 60 million disputes a year for eBay users, and e-mediation is the most common form of online ADR.118 Most online mediation is facilitative; the 749mediator refrains from expressing opinions or offering solutions, but serves largely as a catalyst. Other mediation is evaluative or a combined approach, in which mediators intervene only if the parties are failing to succeed on their own, and the scope of intervention is determined by the parties themselves.119
Compared to in-person mediation, e-mediation holds both advantages and disadvantages. The most obvious benefits are convenience, speed, and cost.120 In addition, proponents claim that electronic dispute resolution offers a “netocracy” that levels the playing field by reducing the tensions, acrimony, and fear-induced concessions that accompany in-person communication among parties with unequal power and unequal tolerance for conflict.121 Forcing parties to communicate in writing also facilitates preservation of exact language and reduces the possibility of ambiguity and selective recall.122
By contrast, skeptics of e-mediation point out various downsides. Increasing speed is not always an advantage, as it reduces the likelihood of cooling off periods and transformative outcomes. Relying solely on written communication also reduces the emotional cues and possibility for rapport that come with personal contact. For some individuals, online communication encourages aggression.123 Parties may also have different levels of technological competence and comfort, which can create new bargaining inequalities. The ease of distributing digital footprints also pose challenges in ensuring confidentiality.
E-mediators do, however, have techniques for mitigating some of these problems. They can slow the process down, insist on civility, use private chat rooms to neutralize abuses, propose some face-to-face contact through video-chatting mediums such as Skype, and develop expertise in reading and managing the emotional content of online communication.
A more fundamental problem is that e-mediation, like other forms of online dispute resolution, is virtually unregulated, meaning it does little to ensure that mediators have the aforementioned competencies. There are no shared ethical standards or requirements of training for e-mediators, although some may adhere to voluntary codes or criteria set by online platforms.124 The absence of oversight may not be a major concern in some contexts, such as disputes involving e-commerce: There, the stakes are relatively small, there are no third-party interests at stake, and there are some standardized terms and accountability. But in 750other cases, such as divorce, where the long-term well-being of parties and vulnerable children may be implicated and where power imbalances are common and may be significant, a strong case has been made for ethical rules and regulation.125
With some reservations, you agreed to serve as a mediator in a divorce action involving the son of an old friend. The couple insisted that they had no substantial disagreements and wished to avoid the costs of separate representation. Each spouse willingly signed an informed consent form acknowledging that you were serving as a mediator rather than an advocate, and that you had advised them to obtain independent counsel.
The couple was married for twelve years. The wife worked to put the husband through law school and then deferred paid employment for several years in order to care for their two children. She recently returned to her job as a nutrition consultant for medical facilities. The couple plans to share legal custody of the young children; the wife will have physical custody.
a)After several sessions, the parties have reached an agreement. Although the terms clearly favor the husband, the settlement is still within the range of what you believe a court will approve. The agreement does, however, have several disturbing aspects. First, you have reason to believe that neither party may have been entirely candid in disclosing financial assets. You suspect that the wife receives consulting income that does not appear on the couple’s tax returns. You also believe that the husband has understated the potential value of separate property investments in technology companies that are soon likely to go public.
A second difficulty is that the wife has waived spousal maintenance and all interest in certain community property purchased by the husband with his salary income during the marriage. You do not believe that her income will be sufficient to adequately support herself and the children. You are uncertain whether the waiver is attributable to a sense of guilt, principles of fairness, a desire to get the proceedings over quickly, or an unwillingness to take a strong bargaining stance that would provoke conflict. You also have observed patterns of verbal and psychological abuse in the way that the husband relates to his wife. However, she denies that he has ever engaged in physical violence.
A final problem is that, in exchange for the wife’s financial concessions, the husband has agreed to reduce his claims for time with the children. He plans to see them only once a month, which you believe is inadequate for their needs. He will also cease taking them for visits to 751their paternal grandparents, whom the wife dislikes but the children adore.
What is your role if you believe that the financial agreement is unreasonably lopsided? How should you handle the financial disclosure issue? Suppose that you discuss the matters with each party separately and that both affirm their original financial statements without responding fully to your concerns? Are you obligated or permitted to raise your suspicions with the ignorant party or to conduct any independent investigation? How should you handle the husband’s concessions concerning visitation if you believe that they are not in the children’s best interests?
Assume that you do not further discuss your suspicions about financial disclosures with either party and that the couple disregards the concerns that you note about fairness and visitation. The court grants the divorce and incorporates the mediated settlement in the final decree. Subsequently, the wife decides to return to graduate school and seeks to reopen the decree. Among other things, she claims that her husband fraudulently concealed the true value of his investments and that you failed to inform her of that possibility or to provide adequate financial counseling. She also threatens to sue you for malpractice and seeks damages based on the cost of re-litigating the original agreement. What is your likely liability?126
b)Suppose the parties ask to conduct the mediation online. After some unproductive exchanges, the husband’s communications become increasingly hostile and include what may be veiled threats of abuse if the wife does not accept his terms. You wonder if the wife was entirely candid with you when she initially denied that the husband had engaged in physical violence.
What do you do? You are tempted to withdraw, but worry that it would leave the wife unprotected and signal to the husband that threats are effective bargaining strategies. Should you suggest outside counseling? Meet with the wife separately in person or in an on-line separate room? What can mediators do to anticipate and respond to such situations?
1.How should the mediator have handled the disclosure issue in Problem 2? In a case with similar facts, a Missouri appellate court assumed arguendo that the attorney-mediator had breached his duties by failing to inquire fully into the husband’s financial affairs or to advise the wife to litigate the issue. However, the court dismissed the malpractice complaint because the plaintiff had failed to establish specific causation: that, if the attorney had 752acted differently, she would have obtained a better mediated settlement without the expense of litigation.127
2.How can lawyer-mediators minimize the risks of such complaints? For example, should mediators confront a party whom they suspect is lying in a private caucus and threaten to terminate the mediation unless full disclosure is made? Alternatively, would it be enough to require a sworn affidavit with financial disclosures?128
3.As noted above, when it comes to mediation, problems of fairness of unequal bargaining power can loom large, and the Model Standards of Conduct for Mediators permit, but do not require, mediators to withdraw rather than facilitate an unfair agreement. In commenting on this approach, Andrew Schepard, reporter for the Standards, notes that while they impose some requirements of procedural fairness, no dispute resolution process can “remedy fundamental preexisting inequities in power or legal entitlements between participants. That job is for legislatures or courts.”129 Do you agree? If you were a mediator and you thought the negotiating parties were poised to enter into a lopsided agreement, how would you proceed?
4.A related issue is the extent to which mediators should consider the interests of unrepresented and absent parties, such as children. Standard VIII of the ABA Model Standards of Practice for Family and Divorce Mediation states: “A family mediator shall assist participants in determining how to promote the best interests of the children.” Is that version preferable to other codes which impose a direct duty on mediators to promote the best interest of the children? What would such standards require on the facts of Problem 2?
5.What is your view of online mediation? Should legislators create an independent regulatory authority to prescribe and enforce ethical standards and qualifications for online mediators generally, or for those handling certain categories of cases? If so, what safeguards would be most important to include? Under what circumstances would you recommend to clients or friends that they engage in online mediation?
6.Many experts believe that certain cases are inappropriate for mediation. Matters involving domestic violence are a commonly cited example. According to critics, mediation places the parties on equal footing and invites compromise. As a result, it may lead to coercive bargaining and also fail to deter abuse. More fundamentally, in order for a mediation to succeed, both parties must display a genuine desire to settle the conflict, weaker parties must be able to assert their interests, and stronger parties must be willing to make genuine concessions. All this is often missing in cases involving domestic violence. Critics also claim that allowing mediation undermines the legal system’s “message to batterers that their conduct is illegal and 753 wrong.” 130 Reflecting these concerns, a number of states prohibit courts from referring matters to mediation if they involve domestic abuse. 131 Do those states draw the right line? Are other kinds of cases inappropriate for mediation? 132
7.On the other end of the spectrum, some states have developed mandatory mediation to resolve child custody disputes. For example, California requires mediation for cases about child custody and visitation. These cases are most expected to benefit from mandatory mediation because they are often contentious, and because mediators in these areas tend to have relevant training in mental health and psychology. Additionally, some have commented that California likely adopted such legislation to help alleviate court congestion by removing these cases from court dockets. 133 Should parties ever be compelled to mediate their disputes? Some note that the empowering potential of mediation is undermined when the process is imposed rather than chosen, particularly when it excludes advocates who can assert weaker parties’ rights. 134 Do you agree? Why or why not?
1Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131, 2031–32 (2018) (collecting civil trial rates from state and federal court, revealing a trial rate of less than 1 percent).
2Marc Galanter, “ . . . A Settlement Judge, Not a Trial Judge”: Judicial Mediation in the United States, 12 J. L. Soc’y 1, 1 (1985).
3The phrase comes from Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).
4Robert Mnookin, Bargaining with the Devil: When to Negotiate, When to Fight 30 (2010).
5Id. at 20, 30.
6Available at http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/settlementnegotiations.authcheckdam.pdf.
7More Tips for When Mediation Impasse Strikes. Also: Ethical Dilemmas at the Negotiating Table, 23 Alt. High Cost Litig. 179, 181 (2005) (paraphrasing Carrie Menkel-Meadow).
8See Roger Fisher & William Ury, Getting To Yes (1981); Howard Raiffa, The Art and Science of Negotiation (1982); Robert Mnookin et al., Beyond Warning: Negotiating to Create Value in Deals and Disputes 281–82 (2000); Jamison Davies, Formalizing Legal Reputation Markets, 16 Harv. Neg. L. Rev. 367 (2011). The few empirical studies available support the claim that collaborative negotiation is more effective. One found that about two-thirds of surveyed lawyers were consistently cooperative and a quarter were consistently competitive; the remainder used mixed styles. Of those rated effective by their peers, three-quarters were cooperative. Gerald Williams, Legal Negotiations and Settlement 19 (1983). In another study involving Chicago and Milwaukee practitioners, three-quarters of lawyers evaluated as “true problem solvers” were described by peers as effective. By contrast, only 14 percent of those classified as ethical and adversarial, and only 1 percent of those classified as unethical and adversarial were rated effective. Catherine H. Tinsley et al., Reputations in Negotiation, in The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator 203 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006).
9G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People 28–43 (1999); see also Robert C. Bordone, Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes, 21 Ohio St. J. Disp. Resol. 1, 19 (2005). A notorious example involves a multi-billion dollar bid for RJR Nabisco. The deal collapsed when two major investment banking firms, Drexel Burnham Lambert and Salomon Brothers, could not agree on which firm’s name would appear on the left hand side of the Wall Street Journal ad announcing the financing of the transaction. The position of the firms’ names would signal to the financial community which of the two was the “lead” bank, and neither would accept second place status. See Bryan Burrough & John Helyar, Barbarians at the Gate: The Fall of RJR Nabisco 30–31 (1990).
10Robert Axelrod, The Evolution of Cooperation 20, 54 (1984). For a more technical presentation, see Michael Taylor, The Possibility of Cooperation (1987). For a critique of this account, see David A. Lax & James K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain 38–41 (1986).
11See research summarized in Andrea Schneider, Negotiating While Female, 70 SMU L. Rev. 695, 708 (2017); Emily T. Amanatullah & Michael W. Morris, Negotiating Gender Roles: Gender Differences in Assertive Negotiating Are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others, 98 J. Personality & Soc. Psychol. 256, 257–58 (2010).
12Axelrod, supra note 10, at 35–36, 53; Davies, supra note 8; see also Lynn Mather, What Do Clients Want? What Do Lawyers Do?, 52 Emory L.J. 1076, 1065–86 (2003); Catherine Dupree, Integrity Has Its Price, Harv. Mag., July–Aug. 2003.
13Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).
14Charles B. Craver, Negotiation Ethics for Real World Interactions, 25 Ohio St. J. on Disp. Resol. 299, 308–09 (2010).
15Id. at 315.
16Id. at 316.
17Robert J. Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role, 51 Md. L. Rev. 1, 11–12 (1992).
18Craver, supra note 14, at 305.
19Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 77 Iowa L. Rev. 1219, 1223–26, 1272–73 (1990).
20Sissela Bok, Lying: Moral Choice in Public and Professional Life (1978); Reed Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator, 8 Geo. J. Leg. Ethics 45 (1994); Shell, supra note 9, at 227.
21Tinsley et al., supra note 8, at 204; see also Roy J. Lewicki, Trust and Distrust, in The Negotiator’s Fieldbook, supra note 8, at 191.
22Craver, supra note 14, at 308.
23Wetlaufer, supra note 19, at 1272–73.
24Mnookin, supra note 4, at 18.
25Andrea Kupfer Schneider, What’s Sex Got to Do With It: Questioning Research on Gender & Negotiation, 19 Nev. L. Rev. 919, 922 (2019); Schneider, Negotiating While Female, supra note 11, at 699–702.
26See, e.g., Emily T. Amanatullah & Catherine H. Tinsely, Ask and Ye Shall Receive? How Gender and Status Moderate Negotiation Success, 6 Negot. & Conflict Mgmt. Res. 253 (2013).
27Jessica A. Kennedy & Laura J. Kray, A Pawn in Someone Else’s Game?: The Cognitive, Motivational, and Paradigmatic Barriers to Women’s Excelling in Negotiation, 35 Res. Org. Behav. 3, 6 (2015).
28Linda Babcock & Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide 88 (2003); Deborah L. Rhode, Women and Leadership 12 (2017).
29Schneider, Negotiating While Female, supra note 11, at 712.
30Schneider, What’s Sex Got to Do With It, supra note 25, at 922–32.
31Id. at 932–36; Hannah Riley Bowles, Psychological Perspectives on Gender in Negotiation, in Sage Handbook on Gender & Psychology 465, 469 (Michelle K. Ryann and Nyla R. Branscombe eds., 2013).
32See research reviewed in Kennedy & Kray, supra note 27, at 16; Jessica Kennedy et al., A Social-Cognitive Approach to Understanding Gender Differences in Negotiator Ethics: The Role of Moral Identity, 138 Org. Behav. & Hum. Decision Processes, 28, 32 (2017).
33Scheneider, What’s Sex Got to Do With It, supra note 25, at 951; Schneider, Negotiating While Female, supra note 11, at 705; Rhode, supra note 28, at 12.
34Schneider, What’s Sex Got to Do With It, supra note 25, at 949.
35Id. at 950; Joseph T. Hallinan, Why We Make Mistakes 8–9 (2009).
36Schneider, Negotiating While Female, supra note 11, at 714.
37Robert A. Frank, Passions Within Reason: The Strategic Role of Emotions 170–71 (1988).
38Restatement of Contracts § 492 (1932). The Restatement of Contracts (Second) does not define duress but its discussion of duress in §§ 174–76 is consistent with the definition quoted here.
39Alan Wertheimer, Coercion 29–45 (1987). Accord Russell Korobkin et al., The Law of Bargaining, in The Negotiator’s Fieldbook, supra note 8, at 183, 186. For a classic legal realist argument that exploiting another party’s vulnerability can be coercive and therefore unethical, see Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Pol. Sci. Q. 470 (1923).
40Korobkin et al., supra note 39, at 841–42.
41Note that if the parties stand in a fiduciary relationship, the law of undue influence may give additional protection to a vulnerable party.
42Model Code of Prof’l Resp., DR 7–105(A) (1969).
43Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, A Handbook on the Model Rules of Professional Conduct 4.4:103 (3d ed. 2001). Of course, Rule 8.4, along with Rule 4.4, prohibits threats of criminal charges when such threats would be considered fraudulent, prejudicial, or harassing. Am. Bar Ass’n Section of Litig., Ethical Guidelines for Settlement Negotiations § 4.3.2 (2002).
44Peter H. Geraghty, Making Threats, Your ABA, Oct. 2008, http://www.americanbar.org/content/dam/aba/publications/YourABA/201108makingthreats.authcheckdam.pdf.
45I realize that some readers, particularly those who are unfamiliar with the realities of the practice of law, may find this anecdote unattractive. Lawyers, however, respond keenly to incentives, and the current custody system in states following “best interests” or similar standards provides a strong incentive to behave like Simon Legree. Lawyers who do not do so are sacrificing their clients’ interests in order to feel good about themselves; to the extent that clients figure this out, such lawyers are also likely to go broke. Those interested in ending such behavior should look to changes in the law that will put an end to such incentives, rather than pinning their hopes on any sudden change in the realities of legal practice in a world well supplied with Simon Legrees and economically disadvantaged women.
46Scott Altman, Lurking in the Shadow, 68 S. Cal. L. Rev. 493, 497–504 (1995).
47Scott H. Hughes, Elizabeth’s Story: Exploring Power Imbalances in Divorce Mediation, 8 Geo. J. Legal Ethics 553 (1995). For an overview of women’s difficulties negotiating for themselves, see Babcock & Laschever supra note 28.
48Raoul Lionel Felder, Divorce 7 (1971). For similar views, see Michael Gross, Trouble in Splitsville, N.Y. Mag., Dec. 13, 1999, at 39 (discussing New York’s “matrimonial mafia”).
49Many divorces trigger severe anger, anxiety, stress, depression, and guilt. See Pauline H. Tesler, Collaborative Law: A New Paradigm for Divorce Lawyers, 5 Psychol. Pub. Pol’y & L. 967 (1999).
50See Sheila M. Gutterman, Collaborative Law: A New Model For Dispute Resolution (2004); Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (2001).
51ABA Nixes Collaborative Practice Law, Wants Law Graduates to Be Practice Ready, 27 ABA/BNA Lawyers’ Manual Prof’l Conduct 524 (2011). For an overview of the ethical issues, see Christopher Fairman, A Proposed Model Rule for Collaborative Law, 21 Ohio St. J. Disp. Resol. 73 (2005); Larry R. Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation Can Be Ethically Incorporated into the Practice of Law, 56 Baylor L. Rev. 141 (2004). The disagreement between the Colorado and ABA opinions is analyzed in Scott R. Pepper, The (New) Ethics of Collaborative Law, 14 Disp. Resol. Mag. 23–27 (Winter 2008).
52In one of the few available empirical studies on lawyers’ negotiation ethics, family law had the highest percentage of lawyers considered by practitioners to be adversarial and unethical (15 percent), and one of the lowest percentages of lawyers considered to be problem solvers (38 percent). Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143 (2002).
53Nancy A. Welsh, Perceptions of Fairness, in The Negotiator’s Fieldbook, supra note 8, at 165–67.
54Id. at 168–70.
55Ian Ayres, Targeting Repeat Offender NDAs, 71 Stan. L. Rev. Online 76, 76–77 (2018); Vicki Schultz, Open Statement on Sexual Harassment from Employment Discrimination Law Scholars, 71 Stan. L. Rev. Online 17, 46 (2018).
56Ronan Farrow, Abuses of Power, New Yorker, Oct. 23, 2017, at 49; Jodi Kantor & Megan Twohey, Harvey Weinstein Paid off Sexual Harassment Accusers for Decades, N.Y. Times, Oct. 5, 2017, at A1; see also Jodi Kantor & Megan Twohey, She Said (2019).
57Emily Steel & Michael Schmidt, Bill O’ Reilly Settled New Harassment Claim, then Fox Renewed His Contract, N.Y. Times, Oct. 21, 2017, at A1; Emily Steel, How Bill O’Reilly Silenced His Accusers, N.Y. Times, Apr. 4, 2018, at B3.
58Jessica Levinson, Non-Disclosure Agreements Can Enable Users. Should We Get Rid of NDAs for Sexual Harassment?, NBC News, Jan. 24, 2018, https://nbcnews.to/2rzTebl.
59Annie Hill, Non-Disclosure Agreements: Sexual Harassment and the Contract of Silence, The Gender Policy Report (Nov. 14, 2017).
60Toni Van Pelt, #MeToo—Still, Ms., Spring 2019, at 42; Braden Campbell, States Act to Quell Harassment As #MeToo Momentum Surges, Law360, Jan. 10, 2018, https://www.law360.com/articles/1000719.
61Cal. Civ. Proc. Code § 1002(e) (2018). For further discussion, see Chapter 14.
62For arguments that nondisclosure clauses could be void on such grounds, see Vasundhara Prasad, If Anyone Is Listening, #MeToo: Breaking the Culture of Silence Around Sexual Abuse Through Regulating Non-Disclosure Agreements and Secret Settlements, 59 B.C. L. Rev. 2507, 2525–34 (2018).
63ABA Formal Op. 06–439, at 6 (2006).
64Wetlaufer, supra note 19, at 1223–26.
65Restatement (Second) of Contracts § 162(1) (1981).
66Id. at § 161(a) (emphasis added).
67Id. at § 161(b).
68Id. at §§ 159, 168; Shell, supra note 9, at 208–10.
69Id. at § 161(d).
70Restatement (Second) of Torts § 526 (1977).
71Id. § 551(2)(a), (c) & (e).
72Id. § 551(2)(d).
73Merrick T. Rossein, 1 Employment Discrimination Law and Litigation § 13:109 (Nov. 2019 update).
74Christopher Macchiaroli & Danielle Tarin, Rewriting the Record: A Federal Court Split on the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1, 2–3 (2009).
75Problem 1(a) is based on a case described in Monroe Freedman, Lying: Is it Ethical?, Legal Times, Dec. 12, 1994, at 20; see also Monroe Freedman, Acceptable Lies, Legal Times, Feb. 20, 1995. Problem 1(b) is modeled on Bails v. Wheeler, 559 P.2d 1180 (Mont. 1977). Problem 1(c) describes the facts in Davin v. Daham, 746 A.2d 1034 (N.J. Super. App. Div. 2000), described in more detail below. Problem 1(d) is modeled on Stare v. Tate, 21 Cal. App. 3d 432 (1971), also described in more detail below. Problem 1(e) draws on Russell Engler, Out of Sight and Out of Line: The Need for Regulation of Lawyers’ Negotiations with Unrepresented Poor Persons, 85 Cal. L. Rev. 79 (1997).
76State Bar of Cal. Standing Comm. on Prof’l Resp., Formal Op. 215–194 (2015).
77Sixty percent of respondents would not lie in both. Peter Reilly, Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help, 24 Ohio St. J. Disp. Resol. 481 (2009).
77Art Hinshaw et al., Attorneys and Negotiation Ethics: A Material Misunderstanding?, Negot. J., July 2013, at 271 (discussing study of Andrea K. Schneider).
78For arguments that the claims about price may be legally permissible if not honorable, but that the claims about another buyer may be fraudulent, see Shell, supra note 9, at 201–11.
79State Bar of Cal., supra note 76 (concluding that such misrepresentations are inappropriate, but suggesting that the answer might be different if the lawyer did not know what the defendant’s intent or eligibility concerning bankruptcy actually was).
80Alvin B. Rubin, A Causerie on Lawyers’ Ethics in Negotiation, 35 La. L. Rev. 577 (1975).
81Thomas Schelling, The Strategy of Conflict 21–22 (Rev. ed. 1980).
82Freedman, supra note 75, at 20.
83Nasik Breeding & Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d 514, 530 (S.D.N.Y. 2001).
84See In re Warner, 851 So. 2d 1029 (La. 2003); see also Ky. Bar Ass’n v. Geisler, 938 S.W. 2d 578, 580 (Ky. 1997) (holding that the lawyer’s failure to reveal client’s death during settlement negotiations constituted misrepresentation).
85Discussion Draft Model Rules of Professional Conduct, Rule 8.6 (1980).
86Legal Servs. Comm’r v Mullins [2006] LPT 012. The barrister, a prominent member of the bar, received a reprimand and a $20,000 fine.
87Lawyers for then-President Clinton invoked Bronston during impeachment proceedings in claiming that some of their client’s deposition statements concerning Monica Lewinsky were misleading but not perjurious. The trial court rejected those claims and in post-impeachment proceedings found Clinton in contempt “notwithstanding tortured definitions and interpretations of the term ‘sexual relations’ ” to exclude oral sex. Jones v. Clinton, 36 F. Supp. 2d 1118, 1130 (E.D. Ark. 1999).
88Maurice E. Schweitzer & Rachel Croson, Curtailing Deception: The Impact of Direct Questions on Lies and Omissions, in What’s Fair Ethics for Negotiators 175, 195–96 (Carrie Menkel-Meadow & Michael Wheeler eds., 2004).
89Kevin Gibson, Ethics and Morality in Negotiation, in The Negotiator’s Fieldbook, supra note 8, at 175–76.
90Rubin, supra note 80, at 592.
91Art Hinshaw & Jess K. Alberts, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics, 16 Harv. Negot. L. Rev. 95 (2011).
92Donald C. Langevoort, Half-Truths: Protecting Mistaken Inferences by Investors and Others, 52 Stan. L. Rev. 87, 94, 98 (1999).
93Alan Strudler, Moral Complexity in the Law of Nondisclosure, 45 UCLA L. Rev. 337, 374–75 (1997).
94Id. at 345.
95Shell, supra note 9, at iv, 218; see also Howard Raiffa, Lectures on Negotiation Analysis 6 (1996).
96Lon L. Fuller, Mediation—Its Forms and Functions, in The Principles of Social Order: Selected Essays of Lon L. Fuller 144 (Kenneth I. Winston ed., 1981).
97Ellen Waldman, Mediation Ethics: Cases and Controversies 19 (2011); Leonard L. Riskin, Mediator Orientations: Strategies and Techniques, 12 Alternatives 111, 114–15 (1994).
98Waldman, supra note 97, at 21; Riskin, supra note 97, at 115.
99Robert Baruch Bush & Joseph P. Folger, The Promise of Mediation 14–15 (2d ed. 2005).
100See generally Jonathan A. Beyer, Practicing Law at the Margins: Surveying Ethics Rules for Legal Associates and Lawyers Who Mediate, 11 Geo. J. Legal Ethics 411 (1998); Linda Galler, “Practice of Law” in the New Millennium: New Roles, New Rules, but No Definitions, 72 Temple L. Rev. 1001 (1999).
101Susan Nauss Exon, How Can a Mediator Be Both Impartial and Fair?: Why Ethical Standards of Conduct Create Chaos for Mediators, 2006 J. Disp. Resol. 387, 394–95 (compiling state standards).
102Am. Bar Ass’n, Model Standards of Practice for Family and Divorce Mediation, Standard III and IV (2001), available at http://www.americanbar.org/content/dam/aba/migrated/family/reports/mediation.authcheckdam.pdf.
103Id. Standard II.
104Id. Standard V.
105For an overview of state provisions, see Alan Kirtley, The Mediation Privilege’s Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process, and the Public Interest, in Mediation Theory and Practice 220 (James J. Alfini et al., eds., 2006).
106Charles W. Ehrhardt, Confidentiality, Privilege and Rule 408: The Protection of Mediation Proceedings in Federal Court, in Mediation Theory and Practice, supra note 105, at 213.
107Waldman, supra note 97, at 229.
108Id. at 240–41.
109Id. at 259.
110See Exon, supra note 101, at 401–07; Waldman, supra note 97, at 115–18.
111Pamela S. Engram & James R. Markowitz, Ethical Issues in Mediation: Divorce and Labor Compared, Mediation Q., June 1985, at 19, 23.
112Christopher Honeyman, Patterns of Bias in Mediation, 1985 J. Disp. Resol. 141, 146.
113Albie M. Davis & Richard A. Salem, Dealing with Power Imbalances in the Mediation of Interpersonal Disputes, Mediation Q., Dec. 1984, at 17, 20–21, 25.
114See Waldman, supra note 97, at 115, 118–19; see also Hughes, supra note 47, at 594–95 (advising mediators not to accept an agreement outside the range that a court would approve unless the weaker party is making an informed and voluntary decision); More Tips, supra note 7, at 181 (quoting Carrie Menkel-Meadow regarding withdrawal to avert a settlement that is substantively unfair).
115Leonard Susskind, Environmental Mediation and the Accountability Problem, 6 Vt. L. Rev. 1, 58 (1981).
116Joshua B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 Vt. L. Rev. 85, 114 (1981).
117Exon, supra note 101, at 402–06.
118Noam Ebner & John Zeleznikow, No Sheriff in Town: Governance for Online Dispute Resolution, 32 Negot. J. 297, 298, 319 (2016); Daphna Lavi, No More Click? Click in Here: E-Mediation in Divorce Disputes—The Reality and the Desirable, 16 Cardozo J. Conflict Resol. 479, 484–85 (2015).
119This intermediate model appears on the popular site, SquareTrade. Lavi, supra note 118, at 486.
120Id. at 518.
121Robert Gordon, The Electronic Personality and Digital Self-Help, 56 Disp. Resol. J. 8, 14 (2001).
122Lavi, supra note 118, at 504–05.
123Id. at 499; Rebecca Brennan, Online Dispute Resolution and Divorce, 13 Cardozo J. Conflict Resol. 197, 216–23 (2011).
124Ebner & Zeleznikow, supra note 118, at 304.
125Lavi, supra note 118, at 536. For an evaluation of difference governance models, see Ebner & Zeleznikow, supra note 118,at 312–18.
126See Robert A. Baruch-Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications 8, 19 (Nat’l Inst. for Disp. Resol. 1992); Lange v. Marshall, 622 S.W.2d 237 (Mo. Ct. App. 1981).
127Lange, 622 S.W.2d at 239.
128Mark D. Bennett & Michelle S. G. Hermann, The Art of Mediation 120–21 (1996).
129Andrew Schepard, An Introduction to the Model Standards of Practice for Family and Divorce Mediation, 35 Fam. L.Q. 1, 16 (2001).
130Joanne Fuller & Rose Mary Lyons, Mediation Guidelines, 33 Willamette L. Rev. 905, 911 (1997); see also René L. Rimelspach, Mediating Family Disputes in a World With Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program, 17 Ohio St. J. Disp. Resol. 95, 96–98 (2001).
131Leigh Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions in Domestic Violence Cases, 37 Fla. St. U. L. Rev. 1, 21 (2009).
132For further reading, see generally Mediation: Theory, Policy and Practice (Carrie Menkel-Meadow ed., 2001).
133See Sofya Perelshteyn, Mediator or Judge?: California’s Mandatory Mediation State in Child Custody Disputes, 17 Pepp. Disp. Resol. L.J. 1, 1–3 (2017) (describing the California legislation and its justifications).
134Penelope Eileen Bryan, Collaborative Divorce: Meaningful Reform or Another Quick Fix?, 5 Psychol. Pub. Pol’y & L. 1001 (1999); Rita Henley Jensen, Divorce-Mediation Style, ABA J., Feb. 1997, at 57.
Much of the early impetus for bar ethical codes arose from concerns about lawyers’ marketing practices. The readings that follow explore these concerns in the context of current rules and policies.
The standard justification for bar regulation rests on the assumption that imperfections in the market for legal services justify external oversight, which the bar is best positioned to carry out. Such imperfections include what economists variously describe as information barriers, adverse selection, free riders, and externalities.
Information Barriers
An initial difficulty stems from many legal consumers’ inability to evaluate the services they receive, even after purchase. Economists agree that legal services are “credence goods.” Unlike “search” or “experience” goods, where a good’s quality is easily and accurately ascertained either before or after purchase, consumers of credence goods cannot easily judge the quality of the good or service they have purchased—even ex post.1
Adding to the difficulty, most individual (as opposed to business) clients are one-shot purchasers. Most Americans consult a lawyer only twice in their lifetime, and few Americans consult the same attorney more than once.2 This lack of experience, coupled with the expense and difficulty of comparative shopping for professional services (a point we discuss below), makes it unbelievably difficult for consumers to identify competent and cost-effective practitioners.3
Exemplifying these dynamics, in a survey by Yankelovich Partners for Martindale-Hubbell, three-quarters of consumers indicated that, when choosing a lawyer, it was hard to know who to trust; 44 percent agreed that it was hard to find a good lawyer; and 28 percent reported that their inability to compare information about different attorneys would limit their ability to research options for representation.4 In another survey, 11 percent of Americans reported a situation in which they considered hiring an attorney but did not do so because they did not 756know how to find an acceptable practitioner.5 This all means that, in the absence of some external regulation, too many purchasers may end up with incompetent, overpriced, or unethical practitioners.
Adverse Selection
A related problem involves the adverse effects of information barriers on the quality of professional services. If clients cannot accurately discriminate among the services available, and no regulatory body enforces minimum standards, lawyers will lack adequate incentives to invest time, effort, and resources in providing quality services. Competition may encourage attorneys to cut corners, and, over time, a “market for lemons” may develop, in which bad lawyering drives out good lawyering, while the public pays the price.6
Free Riders
An additional difficulty involves “free riders”: those who gain from bar standards without personally respecting them. For example, the bar collectively has an interest in securing the public’s trust and in having lawyers conduct themselves in a way that maintains that trust. However, absent effective regulatory structures, individual attorneys will have inadequate economic incentives to avoid cheating. They can benefit as free riders from the bar’s general reputation without personally adhering to the rules that maintain it.
Externalities
A dynamic involves external costs to society and third parties from conduct that may be advantageous to particular clients and their lawyers. The public generally has an interest in the prompt and just resolution of disputes, even though individual clients might prefer that their own lawyers delay or obstruct truth-finding processes.
The Upshot
Although the above analysis calls for some regulation, there is no comparable consensus about the form it should take or who should design the governance structure. The following materials explore such disputes concerning lawyers’ advertising, solicitation, specialization, group services, and fee arrangements.
Lawyers are permitted to advertise per Rule 7.2. This rule provides that lawyers “may communicate information regarding the lawyer’s services through any media” provided that “[a]ny [advertising] communication . . . must include the name and contact information of at 757least one lawyer . . . responsible for its content.”7 Companion Rule 7.1 further admonishes:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
1.History of Advertising Rules
Attorney advertising is now widely permitted—and interestingly, attorney advertising was also widely permissible far back in time. Practitioners in ancient Rome, for example, employed various techniques for self-promotion. Some hawked their services on the street, while others hired clappers to applaud presentations before judges.8 Similarly, throughout most of the nineteenth century in the United States, advertising in circulars and newspapers was common. Self-promotion was not infrequent among even the most distinguished attorneys, including Abraham Lincoln and David Hoffman, the author of one of the first ethical treatises (Fifty Resolutions in Regard to Professional Deportment). Indeed, even the first state ethical code (Alabama, 1887) explicitly permitted newspaper advertisements that did not involve “laudation.”9
However, after the turn of the century, bar leaders became increasingly concerned about commercial practices—motivated, in part, by a desire among elite lawyers to clamp down on the practices of a new wave of immigrant lawyers, who were prone to advertise. The ABA’s 1908 Canons of Ethics reflected this concern and banned attorney advertisements, declaring that they “def[ied] the traditions and lower[ed] the tone of our high calling and [were] intolerable.10 Or, in the tart words of George Sharswood, a prominent early ethics commentator, “business [should] seek the young attorney,” rather than the converse.11
When enacted in 1969, the Model Code retained the Canon’s prohibition, barring “any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients.”12 For decades, in fact, legal ethics committees spent more time refining and enforcing restrictions on advertising and solicitation than 758they devoted to any other subject.13 During the mid-1900s, few forms of self-promotion, however insignificant, escaped the concern of the bar. Courts and committees condemned practices such as distributing embossed matchbooks, sending Christmas cards with a lawyer’s name and profession, using neon lighting or ostentatious lettering in law office signs, endorsing a particular brand of Scotch, wearing jewelry with the state bar insignia, and using boldface type in telephone books.14
The seemingly trivial preoccupations of some ethics opinions should not obscure the serious concerns at issue. To leaders of the organized bar, the prohibitions on advertising (and its close cousin, solicitation) expressed the bedrock belief that law was a profession rather than a business. From their perspective, allowing overt self-promotion would erode professionalism, invite deception, and “lower the whole tone of the administration of justice.”15
Yet, by the late 1960s and early 1970s, a growing constituency both inside and outside the profession began to challenge those assumptions. The increasing diversity of the profession, the rise of the consumer movement, the emergence of low-cost legal clinics, and the growth of concerns about unmet legal needs helped fuel criticism about the bar’s anticompetitive policies. Many commentators viewed policies prohibiting advertising as anachronistic, as they seemed to be premised on the model of a small-town legal practice in which people commonly knew lawyers’ reputations and the cost and quality of their services. Such assumptions were out of step with contemporary, urban realities. In addition, critics objected to the elitist biases underpinning bar policy. Lawyers representing wealthy individuals and corporations had various opportunities for genteel promotion; their firms often subsidized memberships in private clubs and purchased listings in bar-approved law directories available to major businesses. By contrast, attorneys representing poor and middle-income individuals had fewer chances to publicize their services, and their potential clients were less likely to have adequate sources of information.16
These concerns set the stage for the landmark legal case, Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which led to the elimination of the bar’s longstanding restrictions on advertising. Bates involved a low-cost legal clinic—a new kind of law firm developed in the early 1970s that offered simple, no-frills legal services to a mostly middle-income clientele. The Bates petitioners, John Bates and Van O’Steen, were young, 759idealistic law graduates who founded a legal clinic in Phoenix, Arizona in 1974 to offer inexpensive assistance on routine legal matters, such as divorces, adoptions, and name changes. But soon after its founding, the firm faced dwindling revenue. Bates and O’Steen recognized that they would need to advertise in order for their low-fee, high-volume clinic practice to succeed. As O’Steen ultimately testified: “I don’t mind confessing to you that this has not been a terribly profitable operation up to this point, but we think it can be made profitable [if we are permitted to advertise] . . . and if that doesn’t happen this clinic concept will not survive.”17 So, advertise they did, with a somewhat colorless advertisement in the Arizona Republic touting “legal services at very reasonable fees” and listing charges for certain routine services such as uncontested divorces ($175), adoptions ($225), and simple personal bankruptcies ($250).
Though the advertisement was hardly flashy, it did run afoul of Arizona Disciplinary Rule 2–101(B), which at the time provided that “[a] lawyer shall not publicize himself . . . through newspaper . . . advertisements.” Accordingly, Bates and O’Steen were quickly and predictably disciplined, and they ultimately appealed the disciplinary decision to the Supreme Court. In 1977, the Supreme Court held in a five-to-four opinion that lawyer advertising could not be subjected to blanket suppression and that the advertisement at issue deserved First Amendment protection.
In a subsequent decision five years later, In re R.M.J., 455 U.S. 191, 203 (1982), the Court again struck down content restrictions on non-misleading commercial speech.18 In the years since, numerous attorney advertising cases have reached the Supreme Court, and the Court has fleshed out the contours of what is and is not permissible. The Court has held that states cannot prohibit: non-deceptive graphic illustrations or descriptions of ongoing litigation, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985);19 mailings targeted to a specific recipient rather than to members of the general public, Shapero v. Kentucky Bar Ass’n., 486 U.S. 466 (1988);20 or the accurate identification of an attorney 760as a certified trial specialist, Peel v. Attorney Registration & Disciplinary Comm’n., 496 U.S. 91 (1990).21
All these decisions have provoked strong dissents within the Court and widespread opposition within the bar. According to the chair of the ABA’s Commission on Advertising, Bates and its resulting reforms were “about as popular with the legal profession as venereal disease.”22 Surveys in the two decades following Bates generally found that most lawyers opposed mass media advertising and that many practitioners agreed with former Chief Justice Warren Burger that such self-promotion was one of the most “unethical things a lawyer can do.”23 By contrast, according to most surveys, the majority of nonlawyer consumers agreed that mass media advertising was professionally acceptable.24
Although the bar has proved increasingly receptive to marketing, the number of practitioners who advertise “intensively” has remained small. The ABA estimates that only about 2 percent of the nation’s attorneys advertise on television and only about 5 percent advertise on the radio. Rather than mass marketing, most law firms rely on more indirect business development strategies, such as press releases, promotional literature, special events, client education seminars, websites, and yellow pages listings.25
2.Concerns with Attorney Advertising
Critics raise four main objections to attorney ads. Attorney advertising, they contend, will deceive clients, increase costs, foment litigation, and erode the stature and dignity of the profession. Each critique is addressed in turn.
First, some worry that attorney ads are inevitably misleading because legal services are inherently individualized—meaning any ad is likely to confuse, rather than inform, the consumer. In Bates, the majority acknowledged the force of this objection but felt that the 761preferred remedy was “more disclosure, rather than less.” 433 U.S. at 375. Advertising, the Court agreed, “does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision.” Id. at 374. Further, the Court advised: “If the naiveté of the public will cause advertising by attorneys to be misleading, then it is the bar’s role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.” Id. at 375.
Second, opponents of advertising claim that ads raise the price of legal services because they increase overhead costs, and these costs may be passed along to consumers. The Court in Bates considered this argument but rejected it as empirically “dubious.” Id. at 377. The majority pointed out that advertising—particularly price advertising, as seen in the legal clinic ad at issue in Bates—tends to promote price competition, and economists broadly agree that price competition generally results in lower fees for the consumer.
In the decades since Bates, significant evidence supports the Supreme Court’s rosy view. Empirical research, including a rigorous Federal Trade Commission study, suggests that advertising has lowered the price of routine legal services—though, as discussed below, personal injury lawyers’ contingency fees seem to buck this salutary trend.26
Third, critics claim that advertising may affect litigation behavior and induce more individuals to hire lawyers and file claims. In Bates itself, the Court acknowledged this possibility but refused to condemn advertising on this basis: “Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action.” Bates, 433 U.S. at 376.
Finally, critics charge that advertising will erode respect for lawyers and tarnish the profession’s public image. In Bates, however, the Court questioned that premise:
Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession’s failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services or because of an inability to locate a competent attorney. Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who 762structures his social or civic associations so as to provide contacts with potential clients.
Id. at 369–71. In Zauderer (mentioned earlier as a case where the Court permitted advertising), the Court added:
[W]e are unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. . . . [T]he mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it.
Evidence on the effects of advertising on the profession is mixed. Some studies have found adverse effects from attorney advertising. In one survey, consumers who were aware of lawyers’ ads rated the profession lower on characteristics such as trustworthiness, professionalism, honesty, and integrity.27 In another, exposure to certain crass advertisements “heightened pre-existing biases that jury awards are too high, [that] justice can be ‘bought and sold,’ [and] that most lawyers will help clients win ‘even if they know they are lying.’ ”28 Another study found that almost 90 percent of surveyed ABA members believed that advertising harms the profession’s image.29 Other research, however, indicates that “dignified” advertisements reflect favorably on the profession and on the attorneys who advertise.30 One study of Gallup poll data suggested that advertising may actually raise the image of lawyers by shedding the “elitist” image of lawyers and increasing access to legal representation.31 Or advertising may not have much of an effect at all: A comprehensive review of research by the ABA’s Commission on Advertising found no convincing evidence that legal advertising significantly affects public attitudes about lawyers.32
1.Under Rules 7.1 and 7.2, attorney advertisements are generally permitted unless they are “false or misleading.” Comments to Rule 7.1 763further clarify: “A truthful statement is . . . misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.” It further provides that “an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”33
Even with that guidance, the “false or misleading” standard can be tough to apply. By whose standard should the bar evaluate whether lawyers’ representations are misleading? It appears that lawyers ought to use a “reasonable person” standard, but how much knowledge of legal services does the “reasonable person” possess? How tolerant is the “reasonable person” of “puffery”? What kind of evidence is necessary to show that consumers are or might be misled? How does the research cited earlier in this Chapter about the difficulty consumers have when shopping for lawyers influence your answers?
2.How would you evaluate advertising that highlights an attorney’s designation as a “Super Lawyer” by a commercial rating service? Super Lawyers is a magazine or a magazine supplement that claims to base its ratings on “a patented multiphase selection process.” Lawyers who are chosen are encouraged to purchase advertisements in the magazine or supplement.34 Some suggest that these “self-aggrandizing titles,” which cannot be objectively verified, ought to be restricted because they may “lead an unwary consumer to believe that the lawyers so described are . . . superior to their colleagues who practice in the same area of law.”35 Others accept such “Super Lawyer” designations, sometimes subject to specified conditions.36 What approach would you support?
3.Rule 7.2 currently errs on the side of permitting attorney advertising, even if the advertising is patently undignified. Some suggest that Rule 7.2’s approach is too lax and that ads should be more carefully scrutinized. How should the bar’s concern about maintaining its public image be weighed against the benefits of unrestricted speech? In a nation where the average consumer receives close to a thousand messages a day, are tasteless but 764attention-grabbing ads justified? Or does the legal profession have a legitimate—or even compelling—interest in preventing a race to the bottom?
4.Another one of Rule 7.2’s provisions regulates attorney referrals. Rule 7.2(b) provides that “[a] lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may,” among other things:
(4)refer clients to another lawyer or a nonlawyer professional pursuant to an agreement . . . that provides for the other person to refer clients or customers to the lawyer, if:
(i)the reciprocal referral agreement is not exclusive; and
(ii)the client is informed of the existence and nature of the agreement.37
Certain personal injury law firms enter into these reciprocal relationships with physicians or chiropractors, whereby the law firm refers clients to the physician/chiropractor for medical care, and the physician/chiropractor refers patients (who were harmed in auto accidents or on-the-job, for instance) to the personal injury law firm for legal help. Are these relationships ethical? Does Rule 7.2’s requirement that the client be informed resolve any concerns you might have with these arrangements?
5.Professor Nora Freeman Engstrom highlights a dark side of attorney advertising. She notes that most lawyers who now aggressively advertise their services are not legal clinic lawyers, like John Bates and Van O’Steen. Instead, they are personal injury lawyers. She writes:
Most personal injury attorneys, it appears, advertise, and most of the biggest advertisers are personal injury lawyers. Indeed, PI lawyers are, and have long been, the dominant TV advertisers. They are, and have long been, the dominant Yellow Pages advertisers. And, according to the New York Times, of the top ten spenders on legal advertising (of all types), all are personal injury or plaintiff-related law firms.38
Engstrom further observes that these personal injury lawyers charge contingency fees, and there is some evidence that they charge higher contingency fees (on a percentage basis) than their non-advertising counterparts, even though there is scant evidence that they offer superior services. Worse, the public—particularly low-income Americans, who are most likely to hire lawyers based on attorney ads—may labor under serious misconceptions. She elaborates:
There is some evidence that prospective clients overestimate attorney advertisers’ quality. Notably, a 1992 New Mexico survey, specifically studying the public’s perception of direct-mail advertisers, found that some survey respondents (namely, those who were poor and less-educated) believed that attorney advertisers were of higher quality than non-advertisers and 765inclined to give a better deal. Some respondents also overestimated the stringency of regulations that govern attorney advertisements. Namely, 77% of the least educated respondents [falsely] believed that advertising lawyers are legally required to be “experienced in the trial” of cases in the substantive area in which they advertise. A 1990 Nevada survey found much the same. Of those who had not completed high school, 67% of respondents incorrectly believed “that lawyers who advertise for certain types of cases necessarily have specialized knowledge, training, and skills in handling those types of cases.” It is well established that less affluent, less educated individuals are the individuals most apt to select a lawyer on the basis of attorney advertising. If, as these two Bar-sponsored surveys suggest, clients who pick advertising lawyers think that choosing an advertiser includes some experience or quality guarantee, that might at least partially explain [why advertising lawyers appear to charge more, for a similar or even shoddier service].39
Does the above information affect your view concerning the propriety of attorney advertising? Consider the information above as you read about settlement mills below in Section F.
6.How strictly should lawyer advertising be monitored? Recent research suggests that bar regulations governing attorney ads are grossly under-enforced. Since Bates, surveyed jurisdictions have averaged fewer than one reported disciplinary case per year for advertising violations.40 Formal enforcement actions are rare even in states that, on paper, have a strict regulatory stance toward advertising—and even in jurisdictions where non-compliance is common.41 For example, Engstrom’s article above included a study of Yellow Pages ads from thirteen cities, including Las Vegas. Of the Las Vegas ads she reviewed, she found a variety of questionable boasts, including: “GET THE MAXIMUM POSSIBLE SETTLEMENT,” “MAXIMUM RECOVERY,” “MAXIMUM LEGAL POWER,” “More experience in the courtroom,” “Exceptional Lawyers,” “WE ARE THE BEST,” and “Nevada’s Premier Injury Firm.”42 Nevada’s ethics rules forbid lawyers from making “false or misleading communication about the lawyer or the lawyer’s services” and provide that a “communication is false or misleading if it . . . (c) Compares the lawyer’s services with other lawyers’ service, unless the comparison can be factually substantiated.”43 Could any lawyer ever “factually substantiate” his claim that he will secure for a client the “maximum possible settlement”? Why or why not?
766Disciplinary authorities’ reluctance to discipline lawyers for noncompliance may stem from a variety of sources, including:
Does the high visibility of unsanctioned rule violations raise concern? According to some commentators, a refusal to enforce ethical standards erodes respect for bar regulatory processes and shields judgments about commercial speech from open debate and review. At the very least, these commentators argue, disciplinary authorities should define and defend their enforcement policies and bring formal rules in line with actual practices. Do you agree?
7.Internet advertising poses a particular enforcement challenge, as bar personnel are hamstrung by a combination of inadequate resources, ambiguity in the application of ethical standards to electronic communication, and an arguable lack of authority over out-of-state conduct.44 States’ recent attempts to regulate keyword advertising illustrate the novel challenges posed by the internet.
Google and other search providers allow advertisers to bid on keywords and phrases. The winning bidder’s advertisements are then displayed above the search results when a searcher uses the purchased term. Somewhat dubiously, however, some lawyers have purchased keywords associated with the names and practices of their competitors. In September 2018, for example, a Florida lawyer named Alex Hanna complained to the Florida Bar that a different lawyer in the same practice area (DUI and traffic ticket defense) had purchased the phrase “alex hanna” and placed advertisements making use of Hanna’s name. Some clients were apparently confused by the ploy. One disgruntled client, for example, complained that he “was under the impression that he had retained Alex Hanna’s Law Firm and only realized he was being represented by another firm [the Ticket Clinic] when he called Alex Hanna’s Law Firm to check on the status of his case.”45 Should such competitive conduct be permissible? How should states respond?46
8.Recall that, back in the 1970s, the interest in attorney advertising was partially fueled by the concern that consumers needed attorney ads to identify competent practitioners. Today, more than four decades after the Bates decision, that concern persists. Many consumers who are “one shot” 767purchasers of legal services still lack adequate, reliable, and objective sources of information concerning lawyer qualifications, track records, and competence, and, in surveys, Americans continue to express a desire for more and better information.47
The limited objective, verifiable information that is available about lawyers is particularly noteworthy in light of the so-called “transparency revolution” in other areas of American life. As one scholar has put it: “While data are available to help patients pick doctors, investors pick stocks, parents choose schools, passengers select airlines, and diners choose restaurants, even the most basic information on attorney quality remains stubbornly elusive.”48
This is not to say that resources are absent—just that they are lacking. For instance, legal directories and referral services are available, but they do not typically provide information about disciplinary, criminal, and malpractice histories. Martindale-Hubbell is available, but it targets corporate clients, which is precisely the segment of the market where information deficits are smallest. Some new web-based for-profit lawyer rating services are entering the market, including Avvo, Yelp, and LawyerRatingz.com. Because some of these websites identify lawyers with clean records and adequate malpractice insurance, they perform a valuable service by creating additional incentives for appropriate conduct.49 But these, too, are far from comprehensive:
[T]hese websites tend to rely heavily on voluntarily submitted client reviews, and clients often lack the capacity to judge the quality of legal services received, dramatically reducing reliability. Worse, the reviews might not even come from actual clients. As LawyerRatingz candidly disclaims, “[I]t is not possible for us to verify which raters have knowledge of which lawyers, so always take the ratings with a grain of salt. Remember, we have no way of knowing who is doing the rating—customers, people in the lawyer industry, regular people, dogs, cats, etc.”50
Worryingly, a 2014 survey found that Yelp was the most popular of these services.51 Unlike Avvo, FindLaw, and several other alternatives, Yelp does not specialize in reviews of legal services. Furthermore, robust empirical analysis of restaurant reviews has found that Yelp is vulnerable to review fraud—particularly in the form of fake negative reviews.52 Anecdotal evidence makes clear that the legal industry is not immune from such tactics. 768In one reported instance, for example, a lawyer received a negative review from opposing counsel.53 Such services also raise the specter of quid pro quo reviews. The New York Bar has ruled that a lawyer may give clients a $50 credit on their legal bills if they rate the lawyer on an internet website such as Avvo, so long as the credit is not contingent upon a particular rating, the client is not compelled, and the lawyer does not write the review or the rating.54
What is your view? Should the legal profession more actively support forms of public communication apart from advertising by individual attorneys? Following the lead of the medical profession, should it attempt to develop directories or clearinghouses of information that might provide centralized, objective, verifiable data about attorneys’ specialties, experience, education, disciplinary record, insurance status, malpractice history, and so forth?55
You are the chair of a committee appointed by your state supreme court to consider revising ethical rules on attorney advertising. Your current code bans testimonial endorsements, lyrics, jingles, dramatizations, and the use of paid actors. Most lawyers on your committee, including members of various trial lawyers’ associations, want to retain these prohibitions. The nonlawyer members support the proposal of a Federal Trade Commission study, which would ban only false, misleading, or deceptive communications. How would you vote? Would any compromise proposal be preferable?
Committee members have collected the following examples from various jurisdictions that suggest areas where guidance would be useful. Under the standard that you favor, how would you rule on the following advertisements?
a)A television advertisement, in which a casually dressed man announces that his lawyer “got me $175,000 even though the police report said I was totally at fault.”56
b)A print advertisement that uses the terms “expert,” “competent,” “unique,” “tough,” and “revolutionary,” alongside a web address “bestpersonalinjury.com.”57
769c)A claim that we “obtain as much as we can, as fast as we can” for clients and a slogan, “In a wreck, we get a check.”58
d)An advertisement for services at a 20 percent discount and a claim: “Best Possible Settlement in Least Amount of Time.” The ad also states, “My reputation, experience, and integrity result in most of our cases being settled without a complaint or lengthy trial.”59
e)A television advertisement in which a man truthfully states that after his third arrest for drunk driving: “They wanted to put me in jail for a year and take away my driver’s license for ten years. That’s when I called the lawyers at the Ticket Center. They got my case thrown out of court. No jail. No suspension. Nothing.”60
f)A television advertisement showing insurance adjusters planning to delay payments to an accident victim. One of them asks who is representing the defendant. When the answer is Keller & Keller, he says, “Let’s settle this one.”61
g)A Florida television ad that advises: “Don’t settle for less than you deserve.62
h)A poster at a law school reading “Don’t Miss Your Chance to Meet the Top Litigation Firm in the World.” The small print reads: “The largest law firm in the world dedicated solely to business litigation wants to meet you!”
i)A billboard featuring a woman’s body in racy lingerie and a half-naked man’s chiseled torso, with the caption: “Life’s Short: Get a Divorce,” and an ad announcing “HOLIDAY SPECIAL . . . get that spouse some’in she’s been wanting for a long time. . . . A Deeeevorce . . . $150 Bucks,” followed by the lawyers, name, phone number, and “Happy Holidays.”63
j)An ad showing lawyers as giants leaping over large buildings and giving legal assistance to space aliens. Ads featuring pit bulls, sharks, panthers, or lions.64
k)A television ad picturing a recent ferry accident with a tidal wave of green dollar signs; and a promise that the firm settles most cases 770quickly and “$ucessfully,” followed by a phone number “1-800-Sue-Them.”65
References: Rules 7.1, 7.2.
While advertising is now generally permitted in the United States, per Rule 7.2, the same cannot be said of for-profit solicitation. Unlike advertising, which is communication directed toward the general public, solicitation is “targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.”66 With few exceptions, for-profit solicitation is and has long been banned. Today, Rule 7.3 supplies the relevant restriction. It provides:
(a)“Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
(b)A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain unless the contact is:
(1)With a lawyer or a person who has a family, close personal or prior business or professional relationship with the lawyer . . .
(4)With a person who routinely uses for business purposes the type of legal services offered by the lawyer . . .
(c)A lawyer shall not solicit professional employment even when not otherwise prohibited by subsection (b), if: . . .
(2)the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(3)the solicitation involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence. . . .67
Experience with solicitation has been mixed. Prominent attorneys have approached potential clients, and, indeed, many important cases 771are traceable to these interactions.68 Yet, the practice has also had a seamier side, known colloquially as running, capping, or ambulance chasing. This mixed record in promoting the public interest, on the one hand, and exploiting vulnerable parties, on the other, is explored in the readings below. The first excerpt, by Jerold Auerbach, criticizes restrictions on solicitation as a class-based and discriminatory mechanism to deprive injury victims of competent representation. After that, two excerpts present the two canonical Supreme Court cases concerning solicitation, decided the very same day in 1978.
Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America
41–50 (1976).
The [1908 Canons of Professional Ethics] drew heavily upon George Sharswood’s Essay on Professional Ethics, published in 1854. Sharswood’s Essay was at best, antiquated; at worst, irrelevant. He had addressed it to a generation accustomed to moral exhortation and confident that its own definitions of character, honor, and duty were eternal verities. Warning even in the 1850s of “a horde of pettifogging, barratrous, money-making lawyers,” Sharswood had urged “high moral principle” as the bedrock of professional dignity. Passivity and patience were his cardinal virtues. Like young maidens awaiting suitors, aspiring lawyers must await clients. “Let business seek the young attorney,” Sharswood insisted. It might come too slowly for profit or fame (or never come at all), but if the lawyer cultivated “habits of neatness, accuracy, punctuality, and dispatch, candor toward his client, and strict honor toward his adversary, it may be safely prophesied that his business will grow as fast as it is good for him that it should grow.” Sharswood’s safe prophecy may have comforted a young nineteenth-century attorney in a homogeneous small town, apprenticed to an established practitioner, known in his community, and without many competitors. It could hardly reassure his twentieth-century counterpart, the new-immigrant neophyte in a large city where restricted firms monopolized the most lucrative business and thousands of attorneys scrambled for a share of the remainder. . . .
[The bar’s ethical prohibitions] rewarded the lawyer whose law-firm partners and social contacts made advertising unnecessary at the same time that it attributed inferior character and unethical behavior to attorneys who could not afford to sit passively in their offices awaiting clients; it thus penalized both them and their potential clients, who might not know whether they had a valid legal claim or where, if they did, to obtain legal assistance. The canon prohibiting solicitation discriminated 772against those in personal injury practice, who bore the pejorative label “ambulance chasers.” . . .
[This canon] . . . consigned the lawyer to his office to await a client who wandered by with a case that assured fame and fortune, and attributed success (hardly unrelated in American society to monetary accumulation) to good character. The lower the fee a lawyer earned, and the less discreet he was in pursuit of it, the more likely it was that his “money getting” activities would be scrutinized and criticized. The Canons especially impeded those lawyers who worked in a highly competitive urban market with a transient clientele. Little wonder that they made more sense to an attorney in Sullivan & Cromwell or in Fairfax County, Virginia than to a personal injury lawyer on the Lower East Side of Manhattan. . . .
Ambulance chasers became the scapegoats in a heterogeneous profession increasingly populated by foreign-born lawyers. As Boston attorney Reginald Heber Smith concluded, the contingent fee system might be the logical outcome of the existing maldistribution of legal services but it nonetheless constituted “the great blot on the history of the American bar”—primarily because the lure of money attracted “undesirable persons” to the profession. Years later the problem still would be perceived as personal rather than systemic, the responsibility of mercenary lawyers rather than the result of institutional inequity. In 1929, after a lengthy publicized investigation in New York into the evils of ambulance chasing, resulting in recommendations of disciplinary proceedings against seventy-four lawyers, the chief counsel pointedly observed that some attorneys who had testified “could not speak the King’s English correctly. . . . These men by character, by background, by environment, by education were unfitted to be lawyers.” . . .
“Ambulance chasing” was never precisely defined. As a term of art it ostracized plaintiffs’ lawyers who, representing outsiders to the economic system, solicited certain types of business. Once fee-hungry ambulance chasers were isolated, they could be excluded from professional respectability by a series of discriminatory ethical judgments. Their methods of solicitation were condemned, but nothing was said about company claim agents who visited hospitalized workers to urge a quick and inexpensive settlement. Their [contingent] fees were isolated for judicial scrutiny, but larger corporate retainers were ignored by professional associations. . . . Not only were [personal injury lawyers] criticized for professional malfeasance; their speech was mocked (many were recent immigrants) and their perseverance was denigrated as aggressiveness (many were Jewish). Commercialization, speculation, solicitation, and excessive litigation were decried, but there was no mention of the contribution of contingent fees to the enforcement of legitimate claims otherwise denied by the victim’s poverty.
773Ohralik v. Ohio State Bar Association
Supreme Court of the United States
436 U.S. 447 (1978).
n Mr. Justice Powell delivered the opinion of the Court . . .
I
Appellant, a member of the Ohio Bar, lives in Montville, Ohio. Until recently he practiced law in Montville and Cleveland. On February 13, 1974, while picking up his mail at the Montville Post Office, appellant learned from the postmaster’s brother about an automobile accident that had taken place on February 2 in which Carol McClintock, a young woman with whom appellant was casually acquainted, had been injured. Appellant made a telephone call to Ms. McClintock’s parents, who informed him that their daughter was in the hospital. Appellant suggested that he might visit Carol in the hospital. Mrs. McClintock assented to the idea, but requested that appellant first stop by at her home.
During appellant’s visit with the McClintocks, they explained that their daughter had been driving the family automobile on a local road when she was hit by an uninsured motorist. Both Carol and her passenger, Wanda Lou Holbert, were injured and hospitalized. In response to the McClintocks’ expression of apprehension that they might be sued by Holbert, appellant explained that Ohio’s guest statute would preclude such a suit. When appellant suggested to the McClintocks that they hire a lawyer, Mrs. McClintock retorted that such a decision would be up to Carol, who was 18 years old and would be the beneficiary of a successful claim.
Appellant proceeded to the hospital, where he found Carol lying in traction in her room. After a brief conversation about her condition, appellant told Carol he would represent her and asked her to sign an agreement. Carol said she would have to discuss the matter with her parents. She did not sign the agreement, but asked appellant to have her parents come to see her. Appellant also attempted to see Wanda Lou Holbert, but learned that she had just been released from the hospital. He then departed for another visit with the McClintocks.
On his way appellant detoured to the scene of the accident, where he took a set of photographs. He also picked up a tape recorder, which he concealed under his raincoat before arriving at the McClintocks’ residence. Once there, he re-examined their automobile insurance policy, discussed with them the law applicable to passengers, and explained the consequences of the fact that the driver who struck Carol’s car was an uninsured motorist. Appellant discovered that the McClintocks’ insurance policy would provide benefits of up to $12,500 each for Carol 774and Wanda Lou under an uninsured-motorist clause. Mrs. McClintock acknowledged that both Carol and Wanda Lou could sue for their injuries, but recounted to appellant that “Wanda Lou swore up and down she would not do it.” The McClintocks also told appellant that Carol had phoned to say that appellant could “go ahead” with her representation. Two days later appellant returned to Carol’s hospital room to have her sign a contract, which provided that he would receive one-third of her recovery.
In the meantime, appellant obtained Wanda Lou’s name and address from the McClintocks after telling them he wanted to ask her some questions about the accident. He then visited Wanda Lou at her home, without having been invited. He again concealed his tape recorder and recorded most of the conversation with Wanda Lou. After a brief, unproductive inquiry about the facts of the accident, appellant told Wanda Lou that he was representing Carol and that he had a “little tip” for Wanda Lou: the McClintocks’ insurance policy contained an uninsured-motorist clause which might provide her with a recovery of up to $12,500. The young woman, who was 18 years of age and not a high school graduate at the time, replied to appellant’s query about whether she was going to file a claim by stating that she really did not understand what was going on. Appellant offered to represent her, also, for a contingent fee of one-third of any recovery, and Wanda Lou stated “O.K.”
Wanda Lou’s mother attempted to repudiate her daughter’s oral assent the following day, when appellant called on the telephone to speak to Wanda Lou. Mrs. Holbert informed appellant that she and her daughter did not want to sue anyone or to have appellant represent them, and that if they decided to sue they would consult their own lawyer. Appellant insisted that Wanda Lou had entered into a binding agreement. A month later Wanda Lou confirmed in writing that she wanted neither to sue nor to be represented by appellant. She requested that appellant notify the insurance company that he was not her lawyer, as the company would not release a check to her until he did so. Carol also eventually discharged appellant. Although another lawyer represented her in concluding a settlement with the insurance company, she paid appellant one-third of her recovery in settlement of his lawsuit against her for breach of contract . . .
After a hearing, the Board found that appellant had violated Disciplinary Rules (DR) 2–103(A) and 2–104(A) of the Ohio Code of Professional Responsibility [forbidding solicitation]. The Board rejected appellant’s defense that his conduct was protected under the First and Fourteenth Amendments. The Supreme Court of Ohio adopted the findings of the Board, reiterated that appellant’s conduct was not constitutionally protected, and increased the sanction of a public reprimand recommended by the Board to indefinite suspension. . . .
775II
The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession’s ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. It has been proscribed by the organized Bar for many years. . . .
In-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component. While this does not remove the speech from the protection of the First Amendment, as was held in Bates and Virginia Pharmacy, it lowers the level of appropriate judicial scrutiny.
. . . Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking: there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that “the fitting remedy for evil counsels is good ones” is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the “availability, nature, and prices” of legal services, . . . it actually may disserve the individual and societal interest, identified in Bates, in facilitating “informed and reliable decisionmaking.”
It also is argued that in-person solicitation may provide the solicited individual with information about his or her legal rights and remedies. In this case, appellant gave Wanda Lou a “tip” about the prospect of recovery based on the uninsured-motorist clause in the McClintocks’ insurance policy, and he explained that clause and Ohio’s guest statute to Carol McClintock’s parents. But neither of the Disciplinary Rules here at issue prohibited appellant from communicating information to these young women about their legal rights and the prospects of obtaining a monetary recovery, or from recommending that they obtain counsel. DR 2–104(A) merely prohibited him from using the information as bait with which to obtain an agreement to represent them for a fee. The Rule does not prohibit a lawyer from giving unsolicited legal advice; it proscribes the acceptance of employment resulting from such advice. . . .
A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation. . . . 776While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests.16
B
The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation. The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR 2–103(A) and 2–104(A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.19
We need not discuss or evaluate each of these interests in detail as appellant has conceded that the State has a legitimate and indeed “compelling” interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of “vexatious conduct.” We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest.
III
Appellant’s concession that strong state interests justify regulation to prevent the evils he enumerates would end this case but for his insistence that none of these evils was found to be present in his acts of solicitation. . . .
Appellant’s argument misconceives the nature of the State’s interest. The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct 777designed to protect the public from harmful solicitation by lawyers whom it has licensed.
The State’s perception of the potential for harm in circumstances such as those presented in this case is well founded. The detrimental aspects of face-to-face selling even of ordinary consumer products have been recognized and addressed by the Federal Trade Commission, and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter’s qualifications or the individual’s actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual’s privacy, even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited.
The efficacy of the State’s effort to prevent such harm to prospective clients would be substantially diminished if, having proved a solicitation in circumstances like those of this case, the State were required in addition to prove actual injury. Unlike the advertising in Bates, in-person solicitation is not visible or otherwise open to public scrutiny. Often there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place. . . .
Under our view of the State’s interest in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury is immaterial. The facts in this case present a striking example of the potential for overreaching that is inherent in a lawyer’s in-person solicitation of professional employment. They also demonstrate the need for prophylactic regulation in furtherance of the State’s interest in protecting the lay public. We hold that the application of DR 2–103(A) and 2–104(A) to appellant does not offend the Constitution. . . .
n Mr. Justice Marshall, concurring in part and concurring in the judgments. . . .
What is objectionable about Ohralik’s behavior here is not so much that he solicited business for himself, but rather the circumstances in which he performed that solicitation and the means by which he accomplished it. Appropriately, the Court’s actual holding in Ohralik is 778a limited one: that the solicitation of business, under circumstances—such as those found in this record—presenting substantial dangers of harm to society or the client independent of the solicitation itself, may constitutionally be prohibited by the State. In this much of the Court’s opinion in Ohralik, I join fully. . . .
Notwithstanding the injurious aspects of Ohralik’s conduct, even his case illustrates the potentially useful, information-providing aspects of attorney solicitation: Motivated by the desire for pecuniary gain, but informed with the special training and knowledge of an attorney, Ohralik advised both his clients (apparently correctly) that, although they had been injured by an uninsured motorist, they could nonetheless recover on the McClintocks’ insurance policy. The provision of such information about legal rights and remedies is an important function, even where the rights and remedies are of a private and commercial nature involving no constitutional or political overtones.
In view of the similar functions performed by advertising and solicitation by attorneys, I find somewhat disturbing the Court’s suggestion in Ohralik that in-person solicitation of business, though entitled to some degree of constitutional protection as “commercial speech,” is entitled to less protection under the First Amendment than is “the kind of advertising approved in Bates.” The First Amendment informational interests served by solicitation, whether or not it occurs in a purely commercial context, are substantial, and they are entitled to as much protection as the interests we found to be protected in Bates.
B
Not only do prohibitions on solicitation interfere with the free flow of information protected by the First Amendment, but by origin and in practice they operate in a discriminatory manner. As we have noted, these constraints developed as rules of “etiquette” and came to rest on the notion that a lawyer’s reputation in his community would spread by word of mouth and bring business to the worthy lawyer. Bates v. State Bar of Arizona. The social model on which this conception depends is that of the small, cohesive, and homogeneous community; the anachronistic nature of this model has long been recognized. If ever this conception were more generally true, it is now valid only with respect to those persons who move in the relatively elite social and educational circles in which knowledge about legal problems, legal remedies, and lawyers is widely shared.
The impact of the nonsolicitation rules, moreover, is discriminatory with respect to the suppliers as well as the consumers of legal services. Just as the persons who suffer most from lack of knowledge about lawyers’ availability belong to the less privileged classes of society . . . so the disciplinary rules against solicitation fall most heavily on those attorneys engaged in a single-practitioner or small-partnership form of practice—attorneys who typically earn less than their fellow practitioners in larger, corporate-oriented firms. Indeed, some scholars 779have suggested that the rules against solicitation were developed by the professional bar to keep recently immigrated lawyers, who gravitated toward the smaller, personal injury practice, from effective entry into the profession. See J. Auerbach, Unequal Justice 42–62, 126–129 (1976). In light of this history, I am less inclined than the majority appears to be, ante, to weigh favorably in the balance of the State’s interests here the longevity of the ban on attorney solicitation.
C
By discussing the origin and impact of the nonsolicitation rules, I do not mean to belittle those obviously substantial interests that the State has in regulating attorneys to protect the public from fraud, deceit, misrepresentation, overreaching, undue influence, and invasions of privacy. But where honest, unpressured “commercial” solicitation is involved—a situation not presented in either of these cases—I believe it is open to doubt whether the State’s interests are sufficiently compelling to warrant the restriction on the free flow of information which results from a sweeping nonsolicitation rule and against which the First Amendment ordinarily protects. While the State’s interest in regulating in-person solicitation may, for reasons explained ante, . . . be somewhat greater than its interest in regulating printed advertisements, these concededly legitimate interests might well be served by more specific and less restrictive rules than a total ban on pecuniary solicitation. For example, the Justice Department has suggested that the disciplinary rules be reworded “so as to permit all solicitation and advertising except the kinds that are false, misleading, undignified or champertous.”
To the extent that in-person solicitation of business may constitutionally be subjected to more substantial state regulation as to time, place, and manner than printed advertising of legal services, it is not because such solicitation has “traditionally” been banned, nor because one form of commercial speech is of less value than another under the First Amendment. Rather, any additional restrictions can be justified only to the degree that dangers which the State has a right to prevent are actually presented by conduct attendant to such speech, thus increasing the relative “strength of the State’s countervailing interest in prohibition.” As the majority notes, and I wholeheartedly agree, these dangers are amply present in the Ohralik case.
Accordingly, while I concur in the judgments of the Court in both of these cases [Primus and Ohralik], I join in the Court’s opinions only to the extent and with the exceptions noted above.
As noted, the very same day that the Court decided Ohralik, the Court decided In re Primus. In re Primus involved a South Carolina civil rights attorney named Edna Smith Primus who provided pro bono services for the American Civil Liberties Union (ACLU) and paid 780assistance to the South Carolina Council on Human Relations. During the early 1970s, Gary Allen, a representative of an organization serving low-income communities, asked Primus to provide information to female welfare recipients who were being sterilized or threatened with sterilization as a condition of continued receipt of Medicaid benefits in Aiken, South Carolina. At a meeting with some of these women in Allen’s office, Primus provided advice about their legal rights and suggested the possibility of bringing a lawsuit.
A month later, Primus learned from the ACLU that it was willing to represent women who had been sterilized. She also learned from Allen that one woman who had attended the previous meeting, Mary Williams, was interested in taking legal action. Mary Williams ultimately got cold feet, but before she did, she received the following letter from Primus, which ultimately made its way into the hands of South Carolina disciplinary authorities:
August 30, 1973
Mrs. Marietta Williams
347 Sumter Street
Aiken, South Carolina 29801
Dear Mrs. Williams:
You will probably remember me from talking with you at Mr. Allen’s office in July about the sterilization performed on you. The American Civil Liberties Union would like to file a lawsuit on your behalf for money against the doctor who performed the operation. We will be coming to Aiken [South Carolina] in the near future and would like to explain what is involved so you can understand what is going on. . . . [I]f you are interested [in pursing the lawsuit], let me know, and I’ll let you know when we will come down to talk to you about it. We will be coming to talk to Mrs. Waters at the same time; she has already asked the American Civil Liberties Union to file a suit on her behalf.
Sincerely,
Edna Smith
Attorney-at-law
Primus was subsequently disciplined for soliciting a client on behalf of the ACLU, a charge which the South Carolina Supreme Court affirmed. The Primus case, set forth below, spends a lot of time parsing a prior precedent: NAACP v. Button, 371 U.S. 415 (1963). Thus, a little background on Button is also warranted.
781Decided in 1963 in the midst of the civil rights movement, Button involved an NAACP challenge to a Virginia statute which had been construed to prohibit NAACP members and staff attorneys from soliciting desegregation plaintiffs and referring them to the NAACP for free legal assistance. Sustaining the NAACP’s challenge, the Court held that the First Amendment protects advice from NAACP attorneys to prospective litigants, notwithstanding the Commonwealth of Virginia’s power to regulate the legal profession. Namely, the Button Court held that the NAACP’s client-generation activities were “modes of expression and association protected by the First and Fourteenth Amendments.” 371 U.S. at 428–30.
Because the NAACP’s client-generation activities were constitutionally protected, limiting state regulations had to be framed with “narrow specificity.” Id. at 433. Lacking evidence that the NAACP’s conduct had actually led to the substantive evils that the state’s broad prophylactic rules targeted, the Court held that the NAACP’s activity could not be prohibited. Id. at 444.
Supreme Court of the United States
436 U.S. 412 (1978).
n Mr. Justice Powell delivered the opinion of the Court.
[W]e decide today in Ohralik v. Ohio State Bar Assn., that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.
Unlike the situation in Ohralik, however, appellant’s act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain. The question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers. . . .
The Supreme Court of South Carolina found appellant to have engaged in unethical conduct because she “ ‘solicit[ed] a client for a non-profit organization, which, as its primary purpose, renders legal services, where respondent’s associate is a staff counsel for the non-profit organization.’ ” It rejected appellant’s First Amendment defenses by distinguishing Button from the case before it. Whereas the NAACP in that case was primarily a “ ‘political’ ” organization that used “ ‘litigation 782as an adjunct to the overriding political aims of the organization,’ ” the ACLU “ ‘has as one of its primary purposes the rendition of legal services.’ ” The court also intimated that the ACLU’s policy of requesting an award of counsel fees indicated that the organization might “ ‘benefit financially in the event of successful prosecution of the suit for money damages.’ ”
We find . . . unpersuasive any suggestion that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to the ACLU. The discipline administered to appellant was premised solely on the possibility of financial benefit to the organization, rather than any possibility of pecuniary gain to herself, her associates, or the lawyers representing the plaintiffs in the Walker v. Pierce litigation. It is conceded that appellant received no compensation for any of the activities in question. It is also undisputed that neither the ACLU nor any lawyer associated with it would have shared in any monetary recovery by the plaintiffs in Walker v. Pierce. . . .
Contrary to appellee’s suggestion, the ACLU’s policy of requesting an award of counsel fees does not take this case outside the protection of Button. Although the Court in Button did not consider whether the NAACP seeks counsel fees, such requests are often made by that organization. In any event in a case of this kind there are differences between counsel fees awarded by a court and traditional fee-paying arrangements which militate against a presumption that ACLU sponsorship of litigation is motivated by considerations of pecuniary gain rather than by its widely recognized goal of vindicating civil liberties. Counsel fees are awarded in the discretion of the court; awards are not drawn from the plaintiff’s recovery, and are usually premised on a successful outcome; and the amounts awarded often may not correspond to fees generally obtainable in private litigation. Moreover, under prevailing law during the events in question, an award of counsel fees in federal litigation was available only in limited circumstances. And even if there had been an award during the period in question, it would have gone to the central fund of the ACLU.24 Although such benefit to the organization may increase with the maintenance of successful litigation, the same situation obtains with voluntary contributions and foundation support, which also may rise with ACLU victories in important areas of the law. That possibility, standing alone, offers no basis for equating the work of lawyers associated with the ACLU or the NAACP with that of a 783group that exists for the primary purpose of financial gain through the recovery of counsel fees.
Appellant’s letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. See Bates v. State Bar of Arizona. As Button indicates, and as appellant offered to prove at the disciplinary hearing, the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants. “ ‘Free trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe facts.” The First and Fourteenth Amendments require a measure of protection for “advocating lawful means of vindicating legal rights,” Button, 371 U.S., at 437, including “advis[ing] another that his legal rights have been infringed and refer[ring] him to a particular attorney or group of attorneys . . . for assistance,” id., at 434.
V
South Carolina’s action in punishing appellant for soliciting a prospective litigant by mail, on behalf of the ACLU, must withstand the “exacting scrutiny applicable to limitations on core First Amendment rights . . . ” Buckley v. Valeo. South Carolina must demonstrate “a subordinating interest which is compelling,” Bates and that the means employed in furtherance of that interest are “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley.
Appellee contends that the disciplinary action taken in this case is part of a regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients, and to be present on the record before us. Brief for Appellee 37–49. We do not dispute the importance of these interests. This Court’s decision in Button makes clear, however, that “[b]road prophylactic rules in the area of free expression are suspect,” and that “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” 371 U.S., at 438. Because of the danger of censorship through selective enforcement of broad prohibitions, and “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity.” Button, 371 U.S., at 433. . . .
Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant’s activity on behalf of the ACLU. Although a showing of potential danger may 784suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina’s broad prohibition is said to be directed.
The record does not support appellee’s contention that undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant’s letter of August 30, 1973, followed up the earlier meeting—one concededly protected by the First and Fourteenth Amendments—by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading, indeed, it offered “to explain what is involved so you can understand what is going on.” The transmittal of this letter—as contrasted with in-person solicitation—involved no appreciable invasion of privacy; nor did it afford any significant opportunity for overreaching or coercion. Moreover, the fact that there was a written communication lessens substantially the difficulty of policing solicitation practices that do offend valid rules of professional conduct. . . .
The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. [ ] The State’s special interest in regulating members whose profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence. As we decide today in Ohralik, a State also may forbid in-person solicitation for pecuniary gain under circumstances likely to result in these evils. And a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation. . . . Accordingly, nothing in this opinion should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations or their members, having characteristics like those of the NAACP or the ACLU.
We conclude that South Carolina’s application of its [disciplinary rules] to appellant’s solicitation by letter on behalf of the ACLU violates the First and Fourteenth Amendments. The judgment of the Supreme Court of South Carolina is
Reversed.
n Mr. Justice Rehnquist (dissenting) . . . .
In this case and the companion case of Ohralik v. Ohio State Bar Assn., 436 U.S. 447, the Court tells its own tale of two lawyers: One tale ends happily for the lawyer and one does not. If we were given the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of our tales, I might well join in the Court’s 785disposition of both cases. But under our federal system it is for the States to decide which lawyers shall be admitted to the Bar and remain there; this Court may interfere only if the State’s decision is rendered impermissible by the United States Constitution. We can, of course, develop a jurisprudence of epithets and slogans in this area, in which “ambulance chasers” suffer one fate and “civil liberties lawyers” another. But I remain unpersuaded by the Court’s opinions in these two cases that there is a principled basis for concluding that the First and Fourteenth Amendments forbid South Carolina from disciplining Primus here, but permit Ohio to discipline Ohralik in the companion case. I believe that both South Carolina and Ohio acted within the limits prescribed by those Amendments, and I would therefore affirm the judgment in each case. . . .
In distinguishing between Primus’ protected solicitation and Ohralik’s unprotected solicitation, the Court lamely declares: “We have not discarded the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Yet to the extent that this “common-sense” distinction focuses on the content of the speech, it is at least suspect under many of this Court’s First Amendment cases, and to the extent it focuses upon the motive of the speaker, it is subject to manipulation by clever practitioners. If Albert Ohralik, like Edna Primus, viewed litigation “ ‘not [as] a technique of resolving private differences,’ ” but as “ ‘a form of political expression’ and ‘political association,’ ” for all that appears he would be restored to his right to practice. And we may be sure that the next lawyer in Ohralik’s shoes who is disciplined for similar conduct will come here cloaked in the prescribed mantle of “political association” to assure that insurance companies do not take unfair advantage of policyholders.
This absence of any principled distinction between the two cases is made all the more unfortunate by the radical difference in scrutiny brought to bear upon state regulation in each area. Where solicitation proposes merely a commercial transaction, the Court recognizes “the need for prophylactic regulation in furtherance of the State’s interest in protecting the lay public.” On the other hand, in some circumstances (at least in those identical to the instant case)1 “[w]here political expression 786or association is at issue,” a member of the Bar “may not be disciplined unless her activity in fact involve[s] the type of misconduct at which South Carolina’s broad prohibition is said to be directed.”
As the Court understands the Disciplinary Rule enforced by South Carolina, “a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization’s free services.” That prohibition seems to me entirely reasonable. A State may rightly fear that members of its Bar have powers of persuasion not possessed by laymen, and it may also fear that such persuasion may be as potent in writing as it is in person. Such persuasion may draw an unsophisticated layman into litigation contrary to his own best interests, and it may force other citizens of South Carolina to defend against baseless litigation which would not otherwise have been brought. I cannot agree that a State must prove such harmful consequences in each case simply because an organization such as the ACLU or the NAACP is involved.
I cannot share the Court’s confidence that the danger of such consequences is minimized simply because a lawyer proceeds from political conviction rather than for pecuniary gain. A State may reasonably fear that a lawyer’s desire to resolve “substantial civil liberties questions,” may occasionally take precedence over his duty to advance the interests of his client. It is even more reasonable to fear that a lawyer in such circumstances will be inclined to pursue both culpable and blameless defendants to the last ditch in order to achieve his ideological goals. Although individual litigants, including the ACLU, may be free to use the courts for such purposes, South Carolina is likewise free to restrict the activities of the members of its Bar who attempt to persuade them to do so.
I can only conclude that the discipline imposed upon Primus does not violate the Constitution, and I would affirm the judgment of the Supreme Court of South Carolina.
In 1995, the U.S. Supreme Court decided another solicitation case, Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). Went For It involved a Florida rule adopted in 1990 that prohibited lawyers from soliciting accident victims or their families by mail for thirty days after an accident. G. Stewart McHenry was a member of the Florida Bar who ran a lawyer referral service, Went For It, Inc. (WFI), which regularly solicited personal injury and wrongful death clients through direct mail advertising within thirty days of an accident. Soon after the new restriction went into effect, McHenry filed an action in federal court challenging it. His challenge ultimately made its way to the U.S. Supreme Court.
787Once at the Supreme Court, there was no question that the relevant test for evaluating restrictions on commercial speech was “intermediate” scrutiny under the framework set forth three years after Bates in Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980). Under Central Hudson, the government may freely regulate misleading commercial speech. The government may also regulate commercial speech that is not misleading if: (1) the government asserts a substantial interest in support of its regulation; (2) the government demonstrates that the restriction on commercial speech directly and materially advances that interest; and (3) the regulation is “narrowly drawn.”
Applying Central Hudson, the Florida Bar asserted that it had a substantial interest in preserving reasonable standards of personal privacy and maintaining the public’s opinion of the legal profession and justice system:
Because direct-mail solicitations in the wake of accidents are perceived by the public as intrusive, the Bar argues, the reputation of the legal profession in the eyes of Floridians has suffered commensurably. The regulation, then, is an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, “is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families.”
In supporting that claim, the Bar cited the results of a public opinion survey it had conducted over the course of two years, as well as anecdotal accounts of victims who had been offended by lawyers’ letters. The survey found, among other things, that about a quarter of consumers reported lower regard for the profession as a result of solicitation, and 54 percent of the general public said that “contacting persons concerning accidents or similar events is a violation of privacy.” Id. at 626.
In opposition, WFI advanced two pertinent arguments. First, it asserted that the instant case was nearly identical to Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). In that case, decided seven years before, the Court had struck down Kentucky’s absolute ban (without any thirty-day limit) on the mailing or delivery of written advertisements “precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public.” Second, WFI argued that the Florida Bar failed to satisfy the requirements of the Central Hudson test.
In a decision written by Justice O’Connor, the Court ultimately sided with the Florida Bar. The Court held that the Bar’s proffered interests of protecting potential clients’ privacy and improving Florida lawyers’ flagging reputations were narrowly drawn and substantial. The Court 788distinguished Shapero by pointing out that the ban in Shapero was not time-limited and that the state in Shapero had assembled no evidence to demonstrate any actual harm caused by direct-mail solicitation.
Elsewhere in the Went For It opinion, the Court described the “ample alternative channels” available to prospective clients to receive information about available legal representation and noted:
[R]espondents have not pointed to—and we have not independently found—a single example of an individual case in which immediate solicitation helped to avoid, or failure to solicit within 30 days brought about, the harms that concern the dissent. In fact, the record contains considerable empirical survey information suggesting that Floridians have little difficulty finding a lawyer when they need one. Finding no basis to question the commonsense conclusion that the many alternative channels for communicating necessary information about attorneys are sufficient, we see no defect in Florida’s regulation.
Went For It was a five-to-four opinion. Joined by Justices Stevens, Souter, and Ginsburg, Justice Kennedy issued a forceful dissent:
Attorneys who communicate their willingness to assist potential clients are engaged in speech protected by the First and Fourteenth Amendments. That principle has been understood since Bates v. State Bar of Ariz. (1977). The Court today undercuts this guarantee in an important class of cases and unsettles leading First Amendment precedents, at the expense of those victims most in need of legal assistance. With all respect for the Court, in my view its solicitude for the privacy of victims and its concern for our profession are misplaced and self-defeating, even upon the Court’s own premises.
I take it to be uncontroverted that when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses, and preserve evidence. Vital interests in speech and expression are, therefore, at stake when by law an attorney cannot direct a letter to the victim or the family explaining this simple fact and offering competent legal assistance. . . .
As the Court notes, the first of the Central Hudson factors to be considered is whether the interest the State pursues in enacting the speech restriction is a substantial one. The State says two different interests meet this standard. The first is the interest “in protecting the personal privacy and tranquility” of the victim and his or her family. As the Court notes, that interest has recognition in our decisions as a general matter; but it does not follow that the privacy interest in the cases the 789majority cites is applicable here. The problem the Court confronts, and cannot overcome, is our recent decision in Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). In [Shapero], we made an explicit distinction between direct, in-person solicitations and direct-mail solicitations. Shapero, like this case, involved a direct-mail solicitation, and there the State recited its fears of “overreaching and undue influence.” We found, however, no such dangers presented by direct-mail advertising. We reasoned that “[a] letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded.” We pointed out that “[t]he relevant inquiry is not whether there exist potential clients whose ‘condition’ makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” In assessing the substantiality of the evils to be prevented, we concluded that “the mode of communication makes all the difference.” The direct mail in Shapero did not present the justification for regulation of speech presented in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (a lawyer’s direct, in-person solicitation of personal injury business may be prohibited by the State). . . .
In the face of these difficulties of logic and precedent, the State and the opinion of the Court turn to a second interest: protecting the reputation and dignity of the legal profession. The argument is, it seems fair to say, that all are demeaned by the crass behavior of a few. . . . While disrespect will arise from an unethical or improper practice, the majority begs a most critical question by assuming that direct-mail solicitations constitute such a practice. The fact is, however, that direct solicitation may serve vital purposes and promote the administration of justice. . . .
Even were the interests asserted substantial, the regulation here fails the second part of the Central Hudson test, which requires that the dangers the State seeks to eliminate be real and that a speech restriction or ban advance that asserted state interest in a direct and material way. The burden of demonstrating the reality of the asserted harm rests on the State. Slight evidence in this regard does not mean there is sufficient evidence to support the claims. Here, what the State has offered falls well short of demonstrating that the harms it is trying to redress are real, let alone that the regulation directly and materially advances the State’s interests. . . .
. . . Were it appropriate to reach the third part of the Central Hudson test, it would be clear that the relationship between the Bar’s interests and the means chosen to serve them 790is not a reasonable fit. The Bar’s rule creates a flat ban that prohibits far more speech than necessary to serve the purported state interest. Even assuming that interest were legitimate, there is a wild disproportion between the harm supposed and the speech ban enforced. . . .
There is no authority for the proposition that the Constitution permits the State to promote the public image of the legal profession by suppressing information about the profession’s business aspects. If public respect for the profession erodes because solicitation distorts the idea of the law as most lawyers see it, it must be remembered that real progress begins with more rational speech, not less. . . . The image of the profession cannot be enhanced without improving the substance of its practice. . . .
By validating Florida’s rule, today’s majority is complicit in the Bar’s censorship. For these reasons, I dissent from the opinion of the Court and from its judgment.
Id. at 635–45 (Kennedy, J., dissenting).
1.Above, the Court distinguishes Ohralik from Primus in part based on the lawyers’ different pecuniary motivations. If Primus had been a self-supporting civil rights practitioner entitled to statutorily-prescribed attorneys’ fees, should she have been subject to disciplinary action?
2.Consider the harms that Ohralik associated with solicitation, such as overreaching, undue influence, conflicts of interest, and invasion of privacy. To what extent can these harms occur irrespective of who initiates contact? What evidence supports the Court’s assumption that these harms are particularly likely to accompany fee-generating cases? Suppose that Ohralik’s only in-person contact had been with Carol McClintock’s parents, following his telephone call and their invitation to stop by their home.
3.Note the frequency of terms such as “may” and “likely” in the majority decision in Ohralik. Before it limits speech, should the state be required to establish a firmer causal relationship between prohibited expression and the harms that assertedly follow from it?
4.Rule 7.3(b) adopts a presumption against in-person solicitation for pecuniary gain, subject to exceptions for solicitation targeting close personal contacts or sophisticated consumers. In contrast, subsection (c) presumes in-person solicitation for non-pecuniary motives is valid so long as it does not involve overreaching. An alternative proposed by the Federal Trade Commission would essentially make all in-person solicitation, for pecuniary gain or not, subject to subsection (c)’s ban against overreaching. Specifically, the proposal would permit in-person solicitation unless it:
1)involves harassment, coercion, or undue influence;
7912)involves communication with persons who have expressed a desire not to be contacted; or
3)occurs when a potential client is unable to exercise reasonable, considered judgment.69
Would such a prohibition, coupled with strict enforcement of existing rules on fraud and unreasonable fees, be preferable to Rule 7.3?
5.In Edenfield v. Fane, 507 U.S. 761 (1993), the Court invalidated Florida’s ban on personal solicitation by certified public accountants (CPAs). The case involved a declaratory action by Scott Fane, a CPA who previously had built a practice in New Jersey by making unsolicited telephone calls to business executives and arranging meetings to explain his services and expertise. New Jersey, along with some twenty other states, permitted such solicitation. In the majority’s view, personal solicitation by CPAs differed from personal solicitation by lawyers. According to the Court, cases like Ohralik involve unsophisticated clients at moments of “high stress and vulnerability.” By contrast, CPAs’ solicitation methods are generally conducive to “rational and considered decisionmaking” by experienced executives. Moreover, “the importance of repeat business and referrals gives the CPA a strong incentive to act in a responsible and decorous manner.” Finally, the dangers of overreaching by lawyers are greater than in the case of accountants, since lawyers are trained in the art of advocacy.
Writing for the majority, Justice Kennedy also emphasized the positive aspects of solicitation:
A seller has a strong financial incentive to educate the market and stimulate demand for his product or service, so solicitation produces more personal interchange between buyer and seller than would occur if only buyers were permitted to initiate contact. Personal interchange enables a potential buyer to meet and evaluate the person offering the product or service and allows both parties to discuss and negotiate the desired form for the transaction or professional relation. Solicitation also enables the seller to direct his proposals toward those consumers who he has a reason to believe would be most interested in what he has to sell. For the buyer, it provides an opportunity to explore in detail the way in which a particular product or service compares to its alternatives in the market.
Do similar considerations militate in favor of relaxing rules on solicitation in at least some legal contexts, where clients are not approached at times of special stress and vulnerability? Does lawyers’ advocacy training put them in an entirely different category than other sellers of professional services?
6.While lawyers are banned from soliciting clients, per Rule 7.3, insurance adjusters, who seek to settle personal injury claims on behalf of insurance companies (and their insureds), are usually not barred from approaching 792injury victims to obtain a quick release. Unencumbered, they at least sometimes flock to the scene of accidents. Deborah Rhode has written that “recent mass disasters have witnessed industrious industry representatives waylaying family members en route from the funeral.”70 Likewise, in his classic work on insurance claims adjusting following auto accidents, H. Laurence Ross noted that all potential claimants “were approached by the adjuster as quickly as possible.” Among the reasons for this procedure is that delay increases the likelihood the claimant will have retained attorneys, and represented claims are more expensive to settle.71
Adding his voice to the chorus, one state supreme court justice noted many years ago:
Claim agents . . . try by fair means to obtain the lowest possible settlement for injured plaintiffs. . . . It is a veritable scramble between the claim agent and the “chaser” to see which one can reach an injured claimant first. The net result of timely arrival of the solicitor is that the claimant will eventually receive an amount that a court and jury deem adequate and just. . . . [The] solicitation of personal injury cases is the natural reflex or defensive response to the unfair methods of claim adjusters, just as naturally as the human organism elaborates its own antibodies to combat disease.72
Accident victims who are represented by counsel appear to receive higher awards than those who negotiate directly with insurance agents, even for comparable injuries.73 How, if at all, does all this affect your view of Rule 7.3?
Instead of the current asymmetry, would a preferable approach be legislation akin to the legislation Congress enacted to protect victims of airline accidents and their families, which bars any unsolicited communication—either by an attorney or by “any potential party to the litigation”—for forty-five days following the accident?74 Why do you suppose more states have not adopted this approach?
7.Though solicitation has long been banned in the United States, it is apparently still quite commonplace. Legendary San Francisco plaintiffs’ attorney Melvin Belli has been quoted as saying: “All the big cases are chased. There’s a hell of a lot of chasing in the United States, brutal and bad, and I think the bar associations are unctuous about it.”75 Supporting Belli’s anecdotal account, a 2004 survey of those who sought third-party compensation following auto accidents reported that, when claimants were 793asked why they talked with an attorney, 4 percent reported that it was because “an attorney contacted our household,” the very same number as reported that they “saw attorney advertising.”76
Though impermissible solicitation appears to be widespread, disciplinary actions for Rule 7.3 violations are rare. According to Professor Anita Bernstein, from 2002 to 2007, only sixty-two out of 1.3 million licensed attorneys were disciplined for solicitation, and, of those, only half of the reported cases “put any emphasis on solicitation.” Instead, solicitation was thrown in “with a behavior about which the bar appears to care more.”77 Is this apparent under-enforcement a problem? Is the under-enforcement of ethical proscriptions a recurring theme?
8.The advent of social media marketing threatens to erase any distinction between advertising and solicitation. Facebook, for example, allows its marketing customers to target advertisements to a very narrow audience. Facebook’s pattern-matching is so precise, in fact, that it can detect private life events, such as recent break-ups or pregnancies.78 Conceivably, attorneys could use such technology to “micro-target” advertising such that it reaches only those injured in recent car accidents, or only those feuding spouses who may be likely candidates for a divorce. Should marketing of this sort be regulated under the more permissive rubric of advertising, or as a form of solicitation? See Rule 7.3(a) (defining solicitation as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter”).
You are an attorney with a small civil rights firm that specializes in plaintiffs’ employment discrimination and sex harassment suits. Your litigation is now supported primarily by contingent fee recoveries and fee awards, although, in the past, you have also received grants from area foundations.
Last month, while attending a reception for a local artist, you met one of the few female welders at Allard, Inc., a large manufacturing firm. You expressed admiration for her ability to survive in such a sex-segregated workplace. Her response suggested that the company’s treatment of women in general, and of her in particular, may provide grounds for liability. Hearing this, you explained the nature of your legal practice and said: “If you ever want to do something about that, give me a call.” She called you the next day and said she would like to retain you to pursue a lawsuit on her behalf for sexual harassment.
794a)You seek advice from a fellow attorney. She believes that the solicitation issue could become sticky and advises you to refer the client to another lawyer. You are reluctant to pass up this opportunity for a suit likely to generate substantial publicity and high fees. How do you proceed?
b)If you decide to accept the case, may you call, write, or hold a meeting for other female Allard employees describing the litigation? If they contact you with questions about their own situations, may you represent them? Alternatively, may you suggest that your client reach out to other Allard employees, who might also be the victims of sexual harassment? Could you accept those other employees as clients or refer them to another lawyer who would serve as co-counsel in a class action?
c)Would the results be different if you worked for a non-profit civil rights organization that generates only 5 percent of its support through attorneys’ fees?
Reference: Rule 7.3.
Three years ago, one of your law school friends opened a small personal injury firm. He and several attorneys in his firm are facing disciplinary charges involving various forms of allegedly prohibited solicitation. They seek your assistance. The four charges at issue are:
a)A firm lawyer happened to drive by an accident scene, got out of his vehicle, identified himself as a personal injury attorney, advised those present how to preserve evidence, and later represented one of the victims.79
b)Firm staff sent a wreath to the funeral of a child killed in a widely publicized local accident. The wreath included a firm brochure and a letter to the family stating: “Please accept our deepest sympathy in the loss of Randy. We know that you are presently being faced with many difficult decisions and will soon be faced with others. If we may be of assistance to you in any regard, do not hesitate to contact us.” The state’s prohibitions against solicitation refer only to contact made in person or by phone.80
c)The firm sponsored cross-country trips for past clients who were survivors of mass shootings to meet other survivors not yet represented by counsel. The firm encouraged its past clients to talk to these potential clients about their positive experience with the law firm’s representation. These gatherings were all-expenses paid trips that often involved 795sightseeing and expensive meals, but the firm labeled such trips as opportunities to participate in support groups with fellow survivors.81
d)The firm accepts clients who make contact through the “live chat” feature of a website, www.minesafety.com, which includes information about the legal rights of miners as well as the firm’s expertise in handling cases related to mine safety.
e)Firm attorneys provide “pro bono” legal services to friends in the medical profession who have referred patients with personal injury claims.
No clients have complained to the bar concerning the adequacy of the firm’s representation. What do you advise its lawyers on the merits of these charges?
References: Rules 7.2, 7.3.
C.Unauthorized Practice of Law: Nonlawyer Services and Multijurisdictional Practice
Another way that the market for lawyers is regulated in the United States is via prohibitions on the practice of law by nonlawyers. Though lawyers may employ paraprofessionals and delegate tasks to them under Rule 5.5 (so long as the paraprofessionals are appropriately supervised), nonlawyers may not engage in the actual practice law. According to Comment 2 to Rule 5.5, this prohibition is important because “limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.” Fortifying Rule 5.5, many states make the unauthorized practice of law a criminal misdemeanor. In California, for example, a nonlawyer who practices law is subject to a $1,000 fine or up to one year in county jail, or both.82 States also typically provide that the unauthorized practice of law is a defense to a lawsuit for the payment of fees, so if someone practices law without a license, she need not be paid for her efforts. Like restrictions on attorney advertising and client solicitation, the prohibition on the unauthorized practice of law has also been a site of bitter controversy.
796Supreme Court of Florida
355 So. 2d 1186 (1978).
n Per Curiam.
The Florida Bar has filed a petition charging Marilyn Brumbaugh with engaging in the unauthorized practice of law. . . .
Respondent, Marilyn Brumbaugh, is not and has never been a member of the Florida Bar, and is, therefore, not licensed to practice law within this state. She has advertised in various local newspapers as “Marilyn’s Secretarial Service” offering to perform typing services for “Do-It-Yourself” divorces, wills, resumes, and bankruptcies. The Florida Bar charges that she performed unauthorized legal services by preparing for her customers those legal documents necessary in an uncontested dissolution of marriage proceeding and by advising her customers as to the costs involved and the procedures which should be followed in order to obtain a dissolution of marriage. For this service, Ms. Brumbaugh charges a fee of $50. . . .
With regard to the charges made against Marilyn Brumbaugh, this Court appointed a referee to receive evidence and to make findings of fact, conclusions of law, and recommendations as to the disposition of the case. The referee found that respondent, under the guise of a “secretarial” or “typing” service prepares, for a fee, all papers deemed by her to be needed for the pleading, filing, and securing of a dissolution of marriage, as well as detailed instructions as to how the suit should be filed, notice served, hearings set, trial conducted, and the final decree secured. The referee also found that in one instance, respondent prepared a quit claim deed in reference to the marital property of the parties. The referee determined that respondent’s contention that she merely operates a typing service is rebutted by numerous facts in evidence. Ms. Brumbaugh has no blank forms either to sell or to fill out. Rather, she types up the documents for her customers after they have asked her to prepare a petition or an entire set of dissolution of marriage papers. Prior to typing up the papers, respondent asks her customers whether custody, child support, or alimony is involved. Respondent has four sets of dissolution of marriage papers, and she chooses which set is appropriate for the particular customer. She then types out those papers, filling in the blank spaces with the appropriate information. Respondent instructs her customers how the papers are to be signed, where they are to be filed, and how the customer should arrange for a final hearing. . . .
This case does not arise out of a complaint by any of Ms. Brumbaugh’s customers as to improper advice or unethical conduct. It has been initiated by members of The Florida Bar who believe her to be practicing law without a license. The evidence introduced at the hearing below shows that none of respondent’s customers believed that she was an attorney, or that she was acting as an attorney in their behalf. 797Respondent’s advertisements clearly addressed themselves to people who wish to do their own divorces. These customers knew that they had to have “some type of papers” to file in order to obtain their dissolution of marriage. Respondent never handled contested divorces. During the past two years respondent has assisted several hundred customers in obtaining their own divorces. The record shows that while some of her customers told respondent exactly what they wanted, generally respondent would ask her customers for the necessary information needed to fill out the divorce papers, such as the names and addresses of the parties, the place and duration of residency in this state, whether there was any property settlement to be resolved, or any determination as to custody and support of children. Finally, each petition contained the bare allegation that the marriage was irretrievably broken. Respondent would then inform the parties as to which documents needed to be signed, by whom, how many copies of each paper should be filed, where and when they should be filed, the costs involved, and what witness testimony is necessary at the court hearing. Apparently, Ms. Brumbaugh no longer informs the parties verbally as to the proper procedures for the filing of the papers, but offers to let them copy papers described as “suggested procedural education.”
The Florida Bar argues that the above activities of respondent violate the [past] rulings of this Court. . . . In those decisions we held that it is lawful to sell to the public printed legal forms, provided they do not carry with them what purports to be instructions on how to fill out such forms or how to use them. We stated that legal advice is inextricably involved in the filling out and advice as to how to use such legal forms, and therein lies the danger of injury or damage to the public if not properly performed in accordance with law. . . .
Although Marilyn Brumbaugh never held herself out as an attorney, it is clear that her clients placed some reliance upon her to properly prepare the necessary legal forms for their dissolution proceedings. To this extent we believe that Ms. Brumbaugh overstepped proper bounds and engaged in the unauthorized practice of law. We hold that Ms. Brumbaugh, and others in similar situations, may sell printed material purporting to explain legal practice and procedure to the public in general and she may sell sample legal forms. . . . Further, we hold that it is not improper for Marilyn Brumbaugh to engage in a secretarial service, typing such forms for her clients, provided that she only copy the information given to her in writing by her clients. In addition, Ms. Brumbaugh may advertise her business activities of providing secretarial and notary services and selling legal forms and general printed information. However, Marilyn Brumbaugh must not, in conjunction with her business, engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding. More specifically, Marilyn Brumbaugh may not make inquiries nor answer questions from her 798clients as to the particular forms which might be necessary, how best to fill out such forms, where to properly file such forms, and how to present necessary evidence at the court hearings. Our specific holding with regard to the dissolution of marriage also applies to other unauthorized legal assistance such as the preparation of wills or real estate transaction documents. While Marilyn Brumbaugh may legally sell forms in these areas, and type up instruments which have been completed by clients, she must not engage in personal legal assistance in conjunction with her business activities, including the correction of errors and omissions. . . .
It is so ordered.
1.What constitutes the “practice of law”? Attempts to provide a principled definition have been notably unsuccessful.83 If, as Brumbaugh concludes, the practice of law encompasses giving advice on matters involving legal issues, are professionals such as accountants, real estate brokers, investment counselors, and insurance agents engaged in prohibited practices?
The Rules duck the question entirely, noting, in Comment 2 to Rule 5.5, that “the definition of the practice of law is established by law and varies from one jurisdiction to another.” Many state statutes, which often make unauthorized practice a criminal misdemeanor, are similarly unhelpful. Some prohibit the unauthorized practice of law without defining it, while others employ a circular approach: The practice of law is what lawyers do.84
Seeking to provide overdue clarity, in 2002, the ABA created a Task Force on the Model Definition of the Practice of Law. The Task Force proposed that all states adopt a definition of the practice of law reflecting “the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.” The Task Force further proposed that states and territories should “determine who may provide services that are included within the state’s or territory’s definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public.”85
Yet, the proposal received harsh criticism from the Federal Trade Commission and the Justice Department’s Antitrust Division. Their joint letter to the ABA noted the dark history of unauthorized practice of law (UPL) provisions, which have been used “to protect against perceived incursions by real estate agents, bankers, insurance adjusters, and other groups.” The letter cautioned that the proposed definition “could restrain competition between lawyers and nonlawyers to provide similar services to 799American consumers,” ultimately increasing “costs for consumers and limit[ing] their competitive choices.”86
In response to that and other criticism, in 2003, the ABA’s Task Force recommended simply that every jurisdiction devise its own definition. Still, only about half of jurisdictions have defined the practice of law by statute or court rule, perhaps because, when tasked with coming up with a definition, some jurisdictions encountered serious difficulty.87 For example, the task force appointed to define the practice of law in New Hampshire ultimately threw in the towel, admitting that it was “unable to reach a consensus of opinion in order to offer specific findings and recommendations on the practice of law.”88 If you were a state bar official charged with drafting a definition, what would you propose?
2.A typical case under prevailing rules is Fifteenth Judicial District Unified Bar Ass’n v. Glasgow, 1999 WL 1128847 (Tenn. App. 1999), which found that a typing service had engaged in unauthorized practice by informing low-income customers where and when papers should be filed and by preparing some quit-claim deeds necessary to divide real property. If you were the lawyer representing the typing service on appeal, what arguments would you make? If you were a judge hearing that appeal, what would you decide? Would your answer depend on the quality and price of services provided or the vulnerability of consumers?
3.Deborah Rhode reviewed ten years of reported UPL cases and found that only one-quarter of such opinions analyzed whether actual harm occurred or realistically could occur from the unauthorized practice in question. She also conducted a national survey of officials involved in UPL enforcement. That survey found that two-thirds of respondents could not recall a specific case of UPL-caused injury in the past year.89 Do those findings give you pause?
4.Looking comparatively, Professor Rhode reports:
Other nations permit nonlawyers to provide legal advice and assist with routine documents, and the evidence available does not suggest that their performance has been inadequate. In a study comparing outcomes for low-income clients in the United Kingdom on matters such as welfare benefits, housing, and employment, nonlawyers generally outperformed lawyers in terms of concrete results and client satisfaction. After reviewing their own and other empirical studies, the authors of that study concluded that “it is specialization, not professional status, which appears to be the best predictor of quality.” Ontario allows licensed paralegals to represent individuals in minor court cases and administrative 800 tribunal proceedings, and a five-year review reported “solid levels of [public] satisfaction with the services received.” 90
Furthermore, according to Professor Rhode: “In the United States, research on lay specialists who provide legal representation in bankruptcy and administrative agency hearings finds that they generally perform as well or better than attorneys.” 91
5.In recent years, the number of pro se litigants has surged. Now, only 45 percent of all state court cases feature lawyers on both sides; in 55 percent of state court litigation, at least one party proceeds pro se.92 In some areas, rates of pro se representation are even higher. In family law matters (including cases involving divorce, custody, and domestic violence), at least one party appears without a lawyer almost 80 percent of the time.93 These trends extend even to federal court: More than 25 percent of civil federal plaintiffs proceed pro se and more than half seek federal appellate review without lawyers’ assistance.94
To address the crisis of pro se representation, some states have liberalized rules on nonlawyer assistance, so individuals can hire someone to help them navigate the maze that is contemporary civil litigation. For example, several years after Brumbaugh, the Florida Supreme Court adopted a rule permitting nonlawyers to provide oral advice concerning the completion of legal forms approved by the Supreme Court of Florida, though oral communications by nonlawyers are restricted to those “reasonably necessary to elicit factual information to complete the form(s)” and inform the individuals how to file such forms.95 So too, the Washington Supreme Court has established a licensing system for “limited license technicians” for family law cases. California has passed a “Legal Document Assistant” statute, which allows registered assistants to complete, file, and serve forms.96 In July 2019, California also invited public comment on a more robust proposal that would allow certified nonlawyers to dispense legal advice about a limited set of topics.97 Arizona similarly permits “certified legal document preparers” to complete and file documents and provide “general legal information” but not “specific advice . . . about legal rights, remedies, defenses, options or strategies.”98 In Texas, after a federal district 801court held that a computer software program, Quicken Family Lawyer, constituted UPL, the Texas Legislature passed a statute excluding such software from prohibited activities if it “clearly and conspicuously” states that it is not a “substitute for the advice of an attorney.”99 If you were a member of one of these bar commissions or state legislatures, what position would you take on the expansion of nonlawyer services?
6.Prison litigation is another area that is heavily affected by the pro se crisis. In federal courts, prisoner-initiated lawsuits account for over 65 percent of pro se filings.100 Inmates who are serving extended sentences are not (typically) licensed to practice law, but some nevertheless develop extensive knowledge of the law through years of work on their own (and their cellmates’) cases. In the 1960s, several states banned these “jailhouse lawyers” from assisting their fellow inmates.”101 But in Johnson v. Avery, 393 U.S. 483 (1969), the Supreme Court held that, at least when habeas corpus is at issue, states cannot forbid all jailhouse lawyering unless they provide a better alternative.
Today, many jurisdictions have softened their attitudes toward such assistance. Several states now provide formal legal education programs that certify inmates to engage in certain forms of legal practice and even pay graduates of these programs to assist their fellow inmates with legal problems.102 In a 2016 decision, the Vermont Supreme Court rejected the idea that jailhouse lawyering should be regulated under UPL. Incarcerated individuals, the courts reasoned, are “especially disadvantaged in trying to get legal information and advice.”103 And, in 2019, a jailhouse lawyer filed a high-profile case that ultimately reached the Supreme Court.104
7.Some harshly criticize UPL prohibitions. Deborah Rhode, for example, argues that current UPL restrictions go too far, drive up the cost of routine legal services, and exacerbate the pro se crisis, as outlined above. In Rhode’s view, a sensible regulatory framework would provide both less and more protection—less for attorneys and more for consumers.105
Defenders of UPL prohibitions marshal several arguments in response. The first and most important is that lawyers possess skills that even very knowledgeable nonlawyers lack. Virtually every law school graduate recognizes that the first year or two of law school teaches the hard-to-define knack of “thinking like a lawyer.” Someone who thinks like a lawyer has not 802just mastered legal knowledge. Rather, he or she knows how to (a) view fact situations as “the law” understands them, and (b) differentiate strong from weak legal arguments. These are forms of judgment that come from full and prolonged immersion in the law, and, lawyers argue, there is no shortcut or substitute. Furthermore, even if a nonlawyer acquires substantial expertise in some corner of the law, he or she is likely to miss nuance that a trained lawyer, with a broad knowledge of many fields of law, will catch. Second, defenders of UPL restrictions point out that the bar exam offers a valuable screening mechanism intended to ensure a measure of proficiency among lawyers that nonlawyers may lack. Third, the fact that lawyers are governed by an enforceable code of ethics offers clients an extra measure of protection, as does the existence of the attorney-client privilege. Finally, the legal system as a whole benefits by having legal transactions completed at a high level of proficiency—a public good over and above the benefit to clients.
Distilling various defenses of UPL regulation, in 2011, the then-president of the ABA wrote the following letter to the New York Times :
The American Bar Association strongly agrees that our nation must expand access to justice for low-income Americans. However, a rush to open the practice of law to unschooled, unregulated nonlawyers is not the solution. This would cause grave harm to clients. Even matters that appear simple, such as uncontested divorces, involve myriad legal rights and responsibilities. If the case is not handled by a professional with appropriate legal training, a person can suffer serious long term consequences affecting loved ones or financial security. . . . We must expand legal services for those in need, provided by first-rate trained lawyers.106
Who has the better argument? If the alternative to the status quo is trained and licensed nonlawyers, does the ABA’s objection hold up? Do these defenses make sense when bar discipline is lax and the bans on nonlawyer practice are under-enforced? Could most of the advantages of licensing for lawyers be achieved by a comprehensive licensing system for independent paralegals?107
8.Efforts to legally challenge unauthorized practice provisions have generally foundered. In a typical ruling, the Oregon Supreme Court affirmed an order enjoining a form preparation service from providing oral advice. In so ruling, the court summarily rejected a claim that the prohibition impaired constitutionally protected expression. Such an argument, the court reasoned, would call into question many professional licensing and regulatory schemes. Oregon State Bar v. Smith, 942 P.2d 793 (Or. App. 1997).
By contrast, in In re Opinion No. 26, 654 A.2d 1344 (N.J. 1995), the New Jersey Supreme Court rejected bar efforts to prohibit nonlawyers from preparing real estate closing documents. The court noted that the record 803reflected no proof of significant harm to buyers and sellers in parts of New Jersey where realtors performed such services. The court further observed that “the absence of proof” was “particularly impressive” since the dispute between the realtors and the bar was of a “long duration” and the “parties and their counsel [were] singularly able and highly motivated to supply such proof as may exist.” 654 A.2d at 1346. Is this holding consistent with cases like Brumbaugh and Oregon State Bar? If not, which approach is preferable?108
9.How should unauthorized practice rules apply to authors or publishers of legal texts and treatises? In Matter of New York Co. Lawyers’ Ass’n v. Dacey, Norman Dacey published a popular book entitled, “How to Avoid Probate!,” which consisted of 55 pages of text and 310 pages of forms. The pertinent legal principle was stated as follows:
It cannot be claimed that the publication of a legal text which purports to say what the law is amounts to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey’s book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice—the representation and the advising of a particular person in a particular situation . . . . At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person.109
10.How should unauthorized practice rules apply to online providers? In In re Reynoso, 477 F.3d 1117 (9th Cir. 2007), the Ninth Circuit held that Frankfort Digital Services had engaged in prohibited practices by supplying a software aid that went “far beyond providing clerical service.” In essence, the program took information supplied by the customer, determined where to place it on bankruptcy forms, and selected appropriate exemptions. The company’s website “offered customers extensive advice on how to take advantage of so-called loopholes in the bankruptcy code, promised services comparable to those of a ‘top notch bankruptcy lawyer,’ and described its software as ‘an expert system’ that would do more than function as a ‘customized word processor.’ ” 477 F.3d. at 1125. Should it matter whether the program’s work was, in fact, comparable to that of a bankruptcy lawyer 804and superior to that of a bankruptcy petition preparer permitted under 11 U.S.C. § 110?
What about LegalZoom? The company has developed an easy-to-use online platform that assists with a wide range of legal problems. Among other things, it offers over 160 online documents, reportedly “crafted by top attorneys,” that users can download and complete themselves—offering everything from wills (prices start at $89) to registered copyrights ($114). Here is how it works:
When you select “Living Will,” [for example], you will begin to answer a series of relevant questions: name, address, county of residence, etc. Then the site asks a series of questions about life support. Would you want it if you are unconscious and have a terminal condition with no hope of recovery? What care would you like if life support is withdrawn? Do you have any additional comments or instructions? Next, you decide whether to appoint a health-care agent and what powers you wish to grant the agent. It closes by asking for your burial wishes. After spending $39, LegalZoom creates a document from your answers and then prints it out and mails it to you. The process is simple, inexpensive, and quick.110
LegalZoom has so far served over 3.6 million consumers. In 2011 alone, it generated 20 percent of the new LLC filings in California.111
Not surprisingly, LegalZoom has been subject to multiple lawsuits alleging that it violates UPL restrictions.112 This fight continues to play out, and the stakes for the bar are high.113 Of the battle, Professor Benjamin Barton says the following:
[E]ven if LegalZoom’s forms and advice are not currently as good as a live lawyer (and everyone probably knows a lawyer who is already worse than LegalZoom), over time they will continue to improve as experience guides changes to the programs and the forms. Regardless of comparative quality, LegalZoom . . . [is] definitely better than nothing, which is what most poor and middle-income Americans can currently afford.114
Are you persuaded? Should courts apply UPL statutes to such companies?
805A plaintiffs’ firm that primarily represents auto accident victims would like your help in filing a complaint with the state bar and consumer protection agency against Allstate Insurance Company. For the last several years, the company has been sending letters headed “Do I Need an Attorney?” to individuals involved in car accidents with Allstate policy holders. The letters include the following statements.
Lawyers in several other states have filed unsuccessful complaints charging that the letter is misleading and constitutes the unauthorized practice of law. One basis for those claims is the insurance industry’s own research, which shows that individuals who hire lawyers do substantially better than those who negotiate themselves, even after deducting attorneys’ fees.115 What advice do you provide?
References: Rules 5.5, 7.2, 7.3.
a)You are a lawyer representing “Pro Se Legal Services,” which provides form-preparation assistance to individuals who are attempting to represent themselves in uncontested divorces, bankruptcy proceedings, and landlord-tenant cases. Your client employs independent paralegals and is concerned about what to do when a customer asks the paralegals simple questions or makes obvious errors on the forms. It obviously does not help business for employees to prepare forms with clear mistakes. But neither will it help if paralegals are charged with the unauthorized practice of law. Your client wonders if it would solve the problem to have you provide nominal supervision of the employees by being available for consultation if questions arise. Would this arrangement place you in violation of the Rules?
b)Your client also asks whether she could market a “bankruptcy assistant” computer program. With this software, users fill out basic personal and financial information. The software then aids users to 806complete bankruptcy forms by selecting exemptions and appropriate schedules.116
c)Could you propose legislation that would permit Pro Se Legal Services to function effectively and legally?
References: Rules 5.3, 5.5.
a)You are a law student and you have just arrived home to visit your family before the start of your 2L year. Your little sister, you learn, has been terminated without warning from her summer job doing trail maintenance at a national park. Her employer has withheld her final paycheck, claiming that, because she was fired “for cause,” she is not entitled to her last two weeks of wages. Your sister cannot afford a lawyer, but she knows that you volunteer at your law school’s employment law clinic and asks if there’s anything you can do to help.
After discussing the details of your sister’s termination with her, you do some legal research. You quickly find a federal regulation which appears to say that your sister’s employer, as a contractor with the National Parks Service, cannot fire an employee for cause without first issuing a written warning. You also read your sister’s contract, which says nothing at all about withholding compensation. Can you print out the regulation and give it to your sister? Can you point out that her contract does not give the employer the right to withhold compensation?
b)Your sister has now sent an angry email to her former employer, alleging that she was fired because she complained about a supervisor’s inappropriate behavior. In response, her employer has retained a law firm, which has sent her a letter saying she has no legal claim and may face a defamation lawsuit if she persists in her allegations. Your sister wants you to email the law firm on her behalf, “so they know I have a smart law student on my side.” Can you do so? What, if anything, can you say?117
Reference: Rule 5.5.
DoNotPay is an app that bills itself as “the world’s first robot lawyer.” It offers its users the opportunity to “[f]ight corporations, beat bureaucracy and sue anyone at the press of a button.”118 DoNotPay’s largest successes so far have been in getting parking tickets dismissed, but it also helps users participate in class action settlements and bring small claims.
807When a user wishes to contest a parking ticket, the service operates as follows. First, the app asks the user a series of questions about where the infraction took place, whether signage was clear, and whether the ticket details were correct. The questions follow a script which varies with the user’s answers. The app then produces a letter formally contesting the ticket, which the user can mail to the relevant authority.119
a)You are the general counsel of DoNotPay. Your Chief Technology Officer comes to you with a new script she’d like to deploy on the app that includes the language, “Since your ticket is missing crucial details, it may be deemed invalid in court.” Do you approve the language? If not, how do you alter it?
b)You learn that the City of San Francisco, unhappy to be losing revenue from parking tickets, has plans to sue your company for the unauthorized practice of law. What will your defense strategy be?
Reference: Rule 5.5.
2.Multijurisdictional Practice
The bar does not just restrict the practice of nonlawyers. It also restricts licensed lawyers from practicing law outside of their own state’s boundaries. Codified in Rule 5.5(a), this provision provides: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” Subsection (b) continues:
(b)A lawyer who is not admitted to practice in this jurisdiction shall not:
(1)except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2)hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
Subsections (c) and (d) go on to provide that an out-of-state lawyer may furnish legal services only in limited circumstances. For instance, Rule 5.5(c) permits a lawyer licensed in one state to provide temporary legal services in another state if the services are “reasonably related” to the lawyer’s home-state practice. It also permits an out-of-state lawyer to engage in temporary practice if associated with an in-state or admitted pro hac vice (“for this occasion”). Subsection (d) further permits an out-of-state lawyer to provide legal services if: (1) she is providing services to her employer or her employer’s affiliates (i.e., an in-house lawyer) or (2) federal law or other law so provides. Violation of this Rule counts as 808unauthorized practice of law in the same way that practice by nonlawyers does.
In recent years, these restrictions have come under increasing fire, as many modern legal problems cross state lines. Furthermore, many attorney communications, whether by phone or email, do not remain within the jurisdiction where the attorney is licensed to practice. The traditional work-arounds to out-of-state practice restrictions, including the affiliation of licensed local counsel or temporary admission to practice in court pro hac vice, are also seen as burdensome, unpredictable, costly, and inadequate. As an ABA Commission on Multijurisdictional Practice noted:
Testimony before the Commission was unanimous in recognizing that lawyers commonly engage in cross-border legal practice. Further, there was general consensus that such practice is on the increase and that this trend is not only inevitable, but necessary. The explosion of technology and the increasing complexity of legal practice have resulted in the need for lawyers to cross state borders to afford clients competent representation. . . .
The existing system of lawyer regulation is and should be a matter of serious concern for many lawyers. Even in contexts where jurisdictional restrictions clearly apply, as in state-court proceedings, problems are caused by the lack of uniformity among the pro hac vice provisions of different states, unpredictability about how some of the provisions will be applied by the courts in individual cases, and, in some cases, the provisions’ excessive restrictiveness. Of even greater concern, however, is that, outside the context of litigation, the reach of the jurisdictional restrictions is vastly uncertain as well as, potentially, far too restrictive. . . . The existing system of lawyer regulation has costs for clients. For example, out of concern for jurisdictional restrictions, lawyers may decline to provide services that they are able to render skillfully and ethically.120
1.Ranta v. McCarney, 391 N.W.2d 161 (N.D. 1986), is a leading decision on multijurisdictional practice. In the case, an attorney named Esko Ranta, licensed to practice in Minnesota, brought an action against a former client, who resided in North Dakota, to recover fees for legal services Ranta had performed. Specifically, Ranta had traveled to North Dakota to provide the client federal tax advice in connection with the sale of a North Dakota business. On appeal, the Supreme Court of North Dakota held that Ranta had violated North Dakota’s UPL statute, and the client, as a consequence, 809was not obligated to pay for the work Ranta had completed. In the court’s words:
Although our statutory law does not specifically prohibit compensation of out-of-State attorneys who practice law in the State . . . , the statute is clearly intended to provide protection to our citizens from unlicensed and unauthorized practice of law. . . . North Dakota has a compelling interest in regulating the practice of law within its boundaries . . . [and the relevant statute] is aimed at preventing the harm caused by unqualified persons performing legal services for others. Although Ranta may be competent (a factor which is irrelevant), he is not authorized to practice law in this State.121
The dissent argued that the point of UPL provisions was to protect the public, and that the only individuals protected by the majority’s ruling were North Dakota attorneys and a client who had profited from Ranta’s assistance.
How would you have decided the case? May a lawyer admitted only in Minnesota give advice by telephone or email to a client living in North Dakota? What if the advice involves Minnesota or federal law? Does it matter whether the lawyer provides that advice while physically located in Minnesota?
2.Another leading case is Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1 (Cal. 1998). Birbrower was a New York firm that had represented the Sandhu family in various business matters since 1986. One such matter involved a marketing agreement between Tandem Corporation and ESQ Business Services (ESQ-NY), a New York business software producer owned by Kamal Sandhu. Sandhu’s brother subsequently became the primary shareholder of a California corporation with the same name (ESQ-Cal). In 1992, the two corporations hired Birbrower to resolve a dispute with Tandem. The original fee agreement was made in New York and modified in California. Over the course of the representation, Birbrower’s lawyer made three brief trips of several days each to California to confer with ESQ officers, to negotiate with Tandem representatives, and to initiate arbitration proceedings. The dispute was ultimately settled before arbitration.
After the dispute was resolved, ESQ-Cal sued Birbrower for malpractice. Birbrower cross-claimed to recover the firm’s unpaid fee. The trial court granted the plaintiff’s (ESQ-Cal’s) motion for summary judgment on the ground that the fee agreement was unenforceable because Birbrower had engaged in the unauthorized practice of law. The California Supreme Court affirmed. Under the court’s analysis, the “primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state or created a continuing relationship with the California client that included legal duties and obligations.” Physical presence, according to the court, was a relevant but not conclusive factor. Lawyers could engage in unauthorized practice by providing legal advice by telephone, fax, or other means. In the court’s view, 810the Birbrower lawyers’ “extensive practice” in California was sufficient to establish a violation.
The Birbrower decision attracted widespread criticism, which the California legislature partially addressed by creating a statutory exemption from unauthorized practice prohibitions for arbitration proceedings.122 The California Supreme Court also appointed a committee to recommend further changes and ultimately enacted rules (similar to the amended Rule 5.5) that allow limited practice by registered in-house and legal aid attorneys who are duly licensed in another jurisdiction, as well as out-of-state attorneys temporarily in California for litigation or transactional matters.123 To qualify for the temporary legal assistance exemption, the attorney must not maintain an office or a “continuous presence in California for the practice of law” or “regularly engage in substantial business or professional activities in California.”124 What implications do you draw from the Birbrower decision?
3.In the wake of Hurricane Katrina, the ABA created a new Model Court Rule on the Provision of Legal Services Following Determination of Major Disaster. Now referenced in Comment 15 to Rule 5.5, this provision eases UPL restrictions if the state’s highest court decides a bona fide emergency (such as one caused by a flood, earthquake, tsunami, or terrorist attack) exists. If such a ruling is made, displaced lawyers from the affected jurisdiction may practice in a new jurisdiction for a limited period, not to exceed 365 days, while they pursue formal admission to a new bar. Licensed out-of-state lawyers are also permitted to provide pro bono assistance to affected in-state individuals, without regard to UPL restrictions.125
4.Some commentators believe that Rule 5.5 is unduly complex and restrictive. A number of alternatives are possible. Colorado allows lawyers who are licensed in another jurisdiction to practice in the state up to the point of litigation, as long as they do not become domiciled or open an office in the state. Since that rule went into effect in 2003, only a handful of out-of-state lawyers have been disciplined. In testimony before the ABA’s Ethics 20/20 Commission, Colorado’s chief deputy counsel of attorney regulation explained that the rule has “worked well.” “The sky hasn’t fallen.”126 Then-ABA President Carolyn Lamm responded, however, that expanding such an approach would impair the Commission’s credibility and would “not go over in the ABA House of Delegates.”127
811States could alternatively follow the approach set forth in the Restatement (Third) of the Law Governing Lawyers § 3. It provides:
A lawyer currently admitted to practice in a jurisdiction may provide legal services to a client:
(1)at any place within the admitting jurisdiction;
(2)before a tribunal or administrative agency of another jurisdiction or the federal government in compliance with requirements for temporary or regular admission to practice before that tribunal or agency; and
(3)at a place within a jurisdiction in which the lawyer is not admitted to the extent that the lawyer’s activities arise out of or are otherwise reasonably related to the lawyer’s practice under Subsection (1) or (2).
Other possibilities include: a national system of bar admission, discussed in Chapter 15; more permissive state-based reciprocity rules modeled on the European Union system; or a “Common Sense Proposal” to permit legal services on a temporary basis by out-of-state attorneys.128 Under a national bar admission system, a license to practice law would be similar to a driver’s license; the attorney’s state of residence would test for competence, and other jurisdictions would honor its judgment as long as the attorney’s presence is temporary. Under a system like that of the European Union, lawyers could provide legal services in another jurisdiction if they register, limit their practice to occasional activity, agree to comply with local ethics rules and enforcement processes, and maintain legal malpractice insurance.129 Do any of these approaches appear to be preferable to the current system?
The World Trade Organization estimates that the global market for legal services eclipses $550 billion annually and, in recent years, overseas work has been a significant and growing source of revenue for U.S. firms. In the 1990s and 2000s, “the growth of overseas activities of the largest U.S.-based law firms . . . far outpaced their growth within the United States, by a rate of ten-to-one.”130 And, in the last decade, firms on the Am Law 200 list have added nearly 200 overseas offices and more than 6,600 overseas lawyers.131 As trade borders fall, there are increasing calls to further reduce barriers to transnational legal practice. Many experts believe that unless nations better adapt their regulatory structures to 812global and technological developments, their economies and their professions will suffer.
These calls have met with mixed success, as nations vary widely in their receptiveness to foreign attorneys. Some are quite open to global practice, while others are highly restrictive and make it impossible, or nearly impossible, for foreign lawyers to practice within their borders.132 The United States falls somewhere in between, as foreign practice is sometimes permitted, though certain barriers—including expansive unauthorized practice restrictions and substantial state-to-state rule variations—impose formidable obstacles.133
The World Trade Organization’s General Agreement on Trade in Services (GATS), a multilateral treaty that applies to cross-border legal services in all 160+ World Trade Organization Member States, provides a forum in which countries can discuss legal services barriers. According to a 2010 WTO report, seventy-six WTO Member States, including the United States, included legal services in their Schedule of Specific Commitments. A country that includes legal services in its Schedule assumes additional opt-in obligations, such as disclosure of some of its limits on foreign service providers, and a requirement to comply with domestic regulation “disciplines” that require qualification and licensing standards to be based “on objective and transparent criteria” that are “not more burdensome than necessary.”
Article XIX of the GATS also requires WTO countries to conduct negotiations to further liberalize trade. Those negotiations are proceeding slowly. In the United States, efforts have included expansion of rules allowing foreign legal consultants. More than thirty states have such rules, which enable lawyers from other countries who are not licensed in the United States to provide services related to the laws of their home country (and in some jurisdictions, also international law).134 The European Union has extremely liberal rules that allow cross-border practice by lawyers from one EU Member State in another EU Member State. Some EU jurisdictions, such as Ireland, also have liberal rules on admission of foreign attorneys from outside the EU. The International Bar Association and the CCBE, which is the organization that represents the EU’s legal professions, have undertaken efforts to harmonize codes of conduct. Initiatives such as these are likely to have growing influence 813as more lawyers engage in transnational practice and as countries further discuss the legal services’ sections of their international trade agreements.
Several countries have enacted laws to protect their own corporations from lawsuits in U.S. courts by forbidding companies and their lawyers from complying with U.S. discovery requests. For example, in 1980, the French Parliament concluded that French businesses were being harmed by aggressive discovery tactics by foreign lawyers whose clients were suing French businesses. In response, France enacted a criminal law, Law No. 80–538, which provides as follows:135
Article 1. No person may request, seek to obtain or transmit, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature, intended for the constitution of evidence in connection with pending or prospective foreign judicial or administrative proceedings. . . .
Article 3. Without prejudice to any heavier penalties that may be provided by law, any violation of the provisions of Articles 1 shall be punished by imprisonment of from two to six months and a fine.
(Under French law, criminal provisions carrying imprisonment as a punishment may be applied outside of France.)
France does allow foreign discovery—but only under an extremely slow and cumbersome procedure. The party seeking discovery must go to its own national court, which issues letters (called “Letters of Request” or “Letters Rogatory”) to its national consulate in France, which in turn sends the request to the French Ministry of Justice. The foreign court has no power to monitor this discovery process, and French courts will enforce the request according to French law, not the law of the requesting state.
Consider the plight of Karin, a French lawyer, licensed to practice law in both France and New York. Karin is defending a French company, Widgets Lyonnais (WL), against a personal injury lawsuit filed in New York based on defective widgets, alleged to have harmed the plaintiffs. Plaintiffs serve a discovery request on WL, but, citing the Blocking Statute, Karin refuses to tender the requested documents. Plaintiffs move to compel, and the New York judge holds a hearing on whether WL and Karin’s firm must comply with U.S. discovery. The New York court rules in the affirmative and grants plaintiffs’ motion to compel. It rules that WL must provide the information; if it refuses, the court will enter a default judgment against WL and will sanction Karin for discovery 814abuse and report Karin for professional discipline. WL instructs Karin to comply with discovery, but such compliance will subject Karin to criminal prosecution in France—and in a widely-publicized 2007 case, a lawyer was indeed prosecuted for complying with a foreign discovery request. What should Karin do?
References: Rules 1.2, 5.5, 8.4, 8.5; Fed. R. Civ. P. 26; Fed. R. Civ. P. 37.
“Do you hear that loud sucking sound?,” asks an article on outsourcing in The American Jurist. “[I]t is the value of a $120,000 legal education going down the toilet.”136 Offshore lawyers are handling an increasing proportion of routine legal work; some estimate that India alone is netting over a billion dollars in exportable services.137 Many of India’s lawyers have LL.M. degrees from American law schools, and, as compared to U.S. law graduates, they are willing to work at a fraction of the cost. An Indian lawyer reviews documents at about a tenth the price of an American lawyer, and some evidence suggests that their services are of comparable quality.138 A greater number of paralegal and other legal support jobs are also moving overseas, where labor costs are far lower.139
Some bar ethics committees have issued opinions in response, and these, together with other opinions addressing the use of domestic contract attorneys, suggest certain precautions regarding competence, consent, confidentiality, and conflicts. First, before delegating work to offshore lawyers, the supervising lawyer needs to ensure that the work will be competently performed.140 To ensure that performance is adequate, lawyers should consider: the nature of the services assigned, the legal protections and ethical rules of the jurisdiction in which the services will be performed, and the nonfirm lawyers’ education, training, and experience. Supervising lawyers must also monitor overseas practitioners to ensure that they are diligently and faithfully discharging their responsibilities.141 Second, before a lawyer retains or contracts with nonfirm lawyers, the supervising lawyer must typically obtain the client’s informed consent or, at the very least per Rule 1.4, communicate with the client regarding the retention and delegation.142 Third, a lawyer 815sending work overseas must be attuned to client confidentiality, as mandated by Rule 1.6. Other nations have different rules concerning confidentiality, and it is not entirely clear how American rules governing the attorney-client privilege apply overseas.143 Lawyers who outsource legal work need to take special measures to safeguard sensitive information.144 Finally, as work moves overseas, conflicts become a particular concern. The ABA Committee on Ethics and Professional Responsibility has concluded that temporary contract attorneys are still subject to Rules 1.7 and 1.9, which govern conflicts of interest involving current and former clients, respectively.145 Whether Rule 1.10 and prevailing court opinions would require vicarious disqualification would depend on the precise factual circumstances, such as the temporary attorney’s access to confidential information and the extent of the overseas lawyer’s involvement with the supervising law firm.146
You are a partner in a small Sacramento litigation firm. A business acquaintance asks you to defend a complex intellectual property dispute in Sacramento Superior Court. You accept the case, although you have limited experience in this area. Without telling the client, you contract on an hourly basis with a firm in India that has relevant expertise. None of that firm’s lawyers are licensed in the United States. You review the work you receive and sign all court submissions and communications. You bill the client at cost under broad categories such as “legal research” and “preparation of pleadings.” You ultimately obtain a favorable judgment for your client by prevailing on a summary judgment motion. Have you violated any ethical rules?147
References: Rules 1.1, 1.4, 1.6, 1.7, 1.9, 5.5.
D.Multidisciplinary Practice and Nonlawyer Investment in Law Firms
Over the last quarter-century, two additional and related issues have assumed increasing importance: lawyers’ involvement in nonlegal “ancillary” businesses and nonlawyer investment in law firms. Neither of these issues reflects entirely new developments. Some attorneys have long engaged in activities tangential to legal practice, such as selling insurance or providing investment advice. And lawyers have long worked 816for multidisciplinary accounting firms and other nonlawyer-owned entities. But recent trends reveal cross-professional alliances on a larger scale. Faced with increasing competition for clients, a growing desire to harness economies of scale, and clients’ growing demand for integrated legal and nonlegal advice, more lawyers are forging closer relationships with other professionals—and many favor easing current restraints.
Other western industrialized nations generally permit nonlawyers to form partnerships with lawyers. By contrast, in the United States, Rule 5.4’s general prohibition on multidisciplinary practices (MDPs) aims to protect the “Professional Independence of a Lawyer.” Rule 5.4(b) provides: “A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law,” while Section (d) admonishes:
A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1)a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2)a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3)a nonlawyer has the right to direct or control the professional judgment of a lawyer.
The propriety of these restrictions is a matter of hot debate. Critics of MDP (who support the status quo) argue that lines are drawn where they ought to be, as diversification into non-legal activity distracts lawyers from the practice of law, impairs their objectivity, invites misuse of confidential information, and erodes the distinctiveness of law as a profession. Critics also worry that if nonlawyers are permitted to become firm partners, lawyers will become accountable to supervisors from a different tradition with less rigorous standards governing confidentiality, conflicts of interest, and pro bono service. In their view, as disciplinary boundaries blur and thin, law will become just another business, and clients will pay the price as professional judgments are driven by the bottom line.
Proponents of MDP (who favor relaxing Rule 5.4’s restrictions), by contrast, stress the advantages to clients of “one-stop” shopping and the benefits to lawyers of being able to attract additional expertise. The benefits, proponents believe, would extend not just to large firms and business clients, but to small firms and sole practitioners serving individuals whose needs cut across multiple fields. Proponents further 817argue that these activities encourage cost-effective collaborations between lawyers and nonlawyer experts, decrease search costs in hiring such experts, and give lawyers stronger incentives to monitor the services of affiliated professionals. Responding to ethics concerns, proponents suggest critics’ concerns are exaggerated and that, even if it could conceivably be established that conflicts and confidentiality problems were more likely to arise in multidisciplinary firms, it is far from self-evident that total prohibition is the best response.148
In 1999, an ABA Commission on Multidisciplinary Practice weighed in to acknowledge critics’ ethical concerns and to propose strategies to address them short of prohibition. The Commission recommended holding nonlawyers in MDPs to the same ethical standards as those applicable to the bar generally. In addition, the Commission proposed special audit provisions to prevent nonlawyers from interfering with lawyers’ independent professional judgments.149
The ABA House of Delegates considered, but twice rejected, the Commission’s recommendations, refusing to relax prohibitions on multidisciplinary partnerships in the absence of evidence that they would serve the public interest and would not compromise the profession’s independence or loyalty to clients.150 During the House of Delegates’ debates, lawyers who had worked in both law firms and MDPs testified to the absence of significant differences between the ethical cultures of the two organizations, apart from the rules about imputed conflicts of interest. Representatives from MDPs also testified and pointed to records of pro bono service that rivaled those of law firms—but the House of Delegates apparently found this evidence insufficient.
Even without the House of Delegates’ blessing, however, there are some limited moves to permit more MDPs. For one, federal law provides that the giving of tax advice and even representation in tax court do not constitute the practice of law. This exemption enables lawyers to provide services for clients of accounting firms, as long as the work can be defined as “tax,” not legal, assistance. Over the past decade, accounting firms have taken increasing liberties with that definition and have expanded their in-house legal staff to provide much the same services as law firms on matters such as tax, financial, and estate planning, intellectual property, alternative dispute resolution, and litigation support.
The District of Columbia Bar, meanwhile, has pioneered rules on ancillary business and also permits nonlawyers to become firm partners under specified circumstances. As a result, prominent D.C. law firms have formed subsidiaries or quasi-independent business groups within 818the firm. Major areas of concentration have included financial management and investment, international trade, lobbying, real estate, and employee benefits. Increasing numbers of lawyers have also begun experimenting with “one-stop” services for individual as well as corporate clients; a representative example is a law office that employs or affiliates with medical and social workers to assist senior citizens.
Similarly, New York now permits lawyers to develop “strategic alliances” with other professional service providers. Under these alliances, the firms and other providers agree to share clients and sometimes capital.151 In other jurisdictions, lawyers and nonlawyers provide holistic services through collaborative arrangements that do not involve fee sharing. Whether these arrangements can address client needs as effectively as fully integrated MDPs remains to be seen.
1.Consider Capital Associated Industries, Inc. v. Stein, 922 F.3d 198 (4th Cir. 2019). In that case, a trade association representing North Carolina employers had lawyers on its staff, and it wanted its lawyers to be able to answer questions about labor law and draft legal documents (e.g., contracts and employment handbooks) for its members. The trade association reported that, if permitted, it “would offer most legal services without charge as part of its membership fees, but it would charge hourly fees for certain services.” 922 F.3d at 202–03. The association was stymied in offering these services, however, by North Carolina’s restrictions on MDP which prevented corporate entities—including non-profits and voluntary associations—from employing licensed attorneys to provide legal advice to third parties.
The trade association thus sued, seeking a declaratory judgment that North Carolina’s restriction on MDP, as applied to the association, violated its freedom of association and unlawfully burdened its speech. The Court of Appeals ultimately rejected the association’s challenge. In its view, North Carolina’s ban on MDP satisfied intermediate scrutiny because the state’s “interest in regulating the legal profession to protect clients is at least substantial” and because the prohibition was “sufficiently drawn” to protect that interest. Id. at 209. If you had been on the panel, how would you have ruled?
2.If you were a member of the ABA House of Delegates or a justice on a state supreme court, what approach toward MDP would you support?
3.An earlier draft of the Model Rules included a provision that would have permitted lawyers to practice with a firm owned or managed by nonlawyers if the firm met certain ethical requirements. According to Geoffrey Hazard, reporter for the Model Rules Commission: “During the debate [in the ABA’s House of Delegates] someone asked if [this provision] would allow Sears Roebuck to open a law office. When [bar members] found out it would, that was the end of the debate.”152 Should it have been?
8194.Recently, some have started to argue that new law firm forms might be better than traditional forms because they will be more innovative. Here, research on innovation finds that it most often comes through interaction with those in related fields.153 As Richard Susskind notes, just as librarians did not create Google, lawyers may not create tomorrow’s breakthroughs in the delivery of legal services.154 Do you find this argument persuasive?
In the U.S., lawyers are also barred from acquiring capital from nonlawyers per Rule 5.4(a), which provides that a “lawyer or law firm shall not share legal fees with a nonlawyer,” except in one of a few exceptional circumstances. Owing to Rule 5.4(a), in the U.S., “the only way that an attorney can raise capital is either by investing her own funds or borrowing.”155 Or, as Professor Gillian Hadfield has put it:
[Attorneys are] restricted to the plowed-back profits and owner-manager mechanisms that financed companies in the late-nineteenth century before the advent of the modern corporation, which brought with it the separation of ownership and control and the explosion of stock markets and financial institutions that prompted significant economic growth in the first part of the twentieth century.156
The rationale for this prohibition is that nonlawyer investors might “not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”157
This prohibition, however, does not obviate lawyers’ need for financing and capital. Professor Anthony Sebok, for example, contends that the restriction only causes lawyers to borrow large sums from outside lenders.158 This borrowing makes firms vulnerable to bankruptcy, and, to the extent that law firms borrow from lenders, lenders may exercise intrusive control over firms’ decisions and operations. Sebok elaborates:
The control exercised by a lender can be more than just the power to exercise liens it has on property in the event of default. It could be actively exercised during the life of the loan and in 820order to govern decisions that are conventionally associated with the management of the practice of law by attorneys, including the deployment of manpower and other resources on behalf of current clients. Lenders like Citigroup, which already use covenants to force attorneys to “control[ ] . . . discretionary spending, cut[ ] bonuses, freez[e] associate salaries, postpone[e] new hires or initiatives, lay[ ] off professional and administrative staff, and revamp[ ] partner compensation schedules,” could go even further and instruct attorneys about the staffing of cases, the pricing of motions, and even whether to withdraw from representation of certain clients.159
Professor Hadfield, a lawyer and economist, adds that the restriction hobbles innovation and limits providers’ ability to develop and finance innovative solutions to legal problems.160 She writes:
To reduce the cost of law and increase access to legal assistance, the form in which legal services are produced and delivered to the market has to change. This will require much larger scale organizations and more creative and complex financial and management relationships between those who provide legal expertise—lawyers—and those who provide many of the other components that go into ultimately delivering legal assistance to people. In this law is just like another modern complex service: medicine. Costs in health care have been controlled only as a result of substantial organizational innovation. By restricting the organizational and contractual structure of law to conventional solo and small firm practice, the legal profession ensures that the changes necessary to make legal help more affordable to ordinary Americans will not occur.161
1.In 2011, the ABA Ethics 20/20 Commission considered a proposal to allow limited nonlawyer investment. Opposing the proposal, one commentator asked, “Do we really want Walmart or Merrill Lynch to own our law firms?”162 If not, why not?
2.Consider the experience of England, Wales, and Australia. Recently, most of Australia has authorized the creation of alternative practice structures that allow “incorporated legal practices” (called ILPs), which permit ownership interests by nonlawyers and lawyers alike. New South 821Wales, Australia, now has over a thousand such practices.163 Under this framework, ILPs must have at least one practitioner director responsible for creating systems that ensure compliance with professional conduct rules. Directors who fail to take “all reasonable steps” to meet their obligations are subject to disciplinary sanctions.164 The first Australian publicly traded firm, Slater & Gordon, adds additional safeguards. It discloses in its prospectus that its lawyers’ duties to clients and the court supersede the financial interests of investors, and it provides protections for public interest commitments. According to the executive director of Slater & Gordon, nonlawyer ownership has not proven a threat to ethical values or professional independence. If anything, he believes, separating ownership from legal practice has given lawyers more, not less, distance from business pressures.165
The United Kingdom, meanwhile, allows alternative business structures (ABS) regulated by a Legal Services Board. These structures allow nonlawyers to be involved in the investment, ownership, and/or management of the firm, which means that grocery stores can deliver legal services, subject to appropriate safeguards. Several United States firms have converted their London offices to Legal Disciplinary Partnerships, a form of ABS that permits up to a quarter of nonlawyer partners.166 A comprehensive 2014 report found that the “dire predictions about a collapse in ethics and reduction in access to justice as a result of ABS have not materialised. There have been no major disciplinary failings by ABS firms or unusual levels of complaints . . . .”167
3.In 2011, the plaintiff-side law firm Jacoby & Meyers initiated a series of lawsuits challenging Rule 5.4, which prevents nonlawyers from owning an equity share in law firms. The suits claimed that the rule unconstitutionally restricted interstate commerce; burdened the firm’s First Amendment rights to associate with clients; prevented it from raising the capital necessary to invest in improvements in technology and infrastructure, expand its offices and hire additional personnel; and, given all the above, that the rule “perpetuate[d] economic inequity” because a “small practice does not have access to the capital markets that the Wall Street firms have.”168 Though initiated with great fanfare, the suits made little headway. Some were voluntarily dismissed, and the Second Circuit ultimately held that Rule 5.4 passed “muster” because it “serve[d] New York State’s well-established 822interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.”169 Undaunted, Jacoby & Meyers is working with European firms to expand to the United Kingdom. Said firm founder, Len Jacoby: “ ‘Our ability to raise the capital to serve the public is severely restricted in the U.S. by an outdated Rule of Professional Conduct. Now a significant part of our growth strategy will be based in London.”170
4.Does the ban on nonlawyer investment affect all firms the same way? Or, are some firms (such as start-ups or personal injury firms, which typically front the costs and expenses of litigation and bear those costs in the event of a loss) disproportionately affected?171
5.When assessing whether to retain Rule 5.4(a), many regulators ask whether a lawyer is apt to be more independent if she is employed at a lawyer-owned versus nonlawyer-owned firm. Is that the right question?
6.California is currently considering a proposal to allow nonlawyers to hold a financial interest in law firms.172 Should California take the plunge? If you were a policymaker charged with the “protection of the public,” would you retain, modify, or scrap Rule 5.4(a)?173
Of all the public’s complaints about lawyers, expense tops the list. About three-fifths of Americans describe attorneys as greedy and fewer than 5 percent believe that clients get good value for the price of legal services.174 In response to these and other concerns, the U.S. has long sought to control legal fees, but its history of fee regulation reveals a checkered pattern of deference to market forces, price-fixing agreements among lawyers, and occasional legislative and judicial oversight. In evaluating this regulatory pattern, it is appropriate to consider what approaches will best accommodate an array of interests: protecting clients against overreach, encouraging competent and efficient professional services, and maximizing access to the law.
Practices surrounding the collection of legal fees have long aroused discomfort among both lawyers and clients. In England, early traditions 823held that gentlemen did not pay other gentlemen for their services.175 Accordingly, barristers, the elite of the profession, never discussed fees with their clients; all commercial matters were handled through solicitors and clerks. In this country, the absence of a comparable status division among practitioners made analogous fee conventions impractical. However, many attorneys attempted to distance themselves from the more sordid commercial aspects of their profession by declining to “haggle” with their clients over money. The profession’s distaste for bargaining over fees was also apparent in its earliest Canons of Ethics’ condemnation of “underbidding” and the bar’s subsequent encouragement of minimum fee schedules, which set minimum prices for particular legal services.176
Minimum fee schedules became popular during the 1950s and, by the early 1970s, they were utilized by thirty-four states, more than 700 local bar associations, and the majority of practicing lawyers. But in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), a unanimous Supreme Court invalidated these restrictions. Speaking through Chief Justice Burger, the Court held that “learned professions” involved “trade or commerce” within the scope of federal antitrust legislation, and a profession’s promulgation of a minimum fee schedule, enforced through disciplinary action, constituted an unlawful restraint of trade. 421 U.S. at 787. Yet, Goldfarb hardly constitutes the last word on legal fees in the United States. Nearly half-a-century after that decision, society’s and the profession’s interest in fees—and the reasonableness of legal fees—endures.
These days in the United States, there are four main types of fee arrangements: (1) the hourly fee; (2) a flat fee for a particular matter; (3) a proportional fee, such as a percentage of an estate or property involved in a transaction; and (4) a contingent fee, which provides for a fee the size or payment of which is conditioned on some measure of the client’s success. Such billing methods can also be used in combination (i.e., a “blended fee”), or adjusted to incorporate certain incentives (e.g., a flat fee with a bonus for a particular result).
Under Rule 1.5, lawyers’ fees must not be “unreasonable.” The Rule provides:
(a)A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
824(1)the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2)the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3)the fee customarily charged in the locality for similar legal services;
(4)the amount involved and the results obtained;
(5)the time limitations imposed by the client or by the circumstances;
(6)the nature and length of the professional relationship with the client;
(7)the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8)whether the fee is fixed or contingent.
Charging an excessive fee could, theoretically, subject a lawyer to professional discipline. In practice, however, disciplinary committees tend not to impose sanctions on lawyers for excessive fees, unless the amount charged is so excessive as to appear unconscionable or equivalent to a misappropriation of funds.177 Demonstrating the infrequency of bar disciplinary actions for excessive fees, the following case is the first Massachusetts decision disciplining a lawyer on this basis.
In the Matter of Laurence S. Fordham
Supreme Court of Massachusetts
668 N.E.2d 816 (1996).
This is an appeal from the Board of Bar Overseers’ (board’s) dismissal of a petition for discipline filed by bar counsel against attorney Laurence S. Fordham. On March 11, 1992, bar counsel served Fordham with a petition for discipline alleging that Fordham had charged a clearly excessive fee . . . for defending Timothy Clark (Timothy) in the District Court against a charge that he operated a motor vehicle while under the influence of intoxicating liquor (OUI) and against other related charges. . . .
After five days of hearings, and with “serious reservations,” the hearing committee concluded that Fordham’s fee was not substantially in excess of a reasonable fee and that, therefore, the committee recommended against bar discipline. Bar counsel appealed from that determination to the board. By a vote of six to five, with one abstention, that board accepted the recommendation of the hearing committee and 825dismissed the petition for discipline. Bar counsel then filed in the Supreme Judicial Court for Suffolk County (county court) a claim of appeal from the board’s action. . . . We conclude . . . that the board erred in dismissing bar counsel’s petition for discipline. We direct a judgment ordering public censure be entered in the county court.
We summarize the hearing committee’s findings. On March 4, 1989, the Acton police department arrested Timothy, then twenty-one years old, and charged him with OUI, operating a motor vehicle after suspension, speeding, and operating an unregistered motor vehicle. At the time of the arrest, the police discovered a partially full quart of vodka in the vehicle. After failing a field sobriety test, Timothy was taken to the Acton police station where he submitted to two breathalyzer tests which registered .10 and .12 respectively.
Subsequent to Timothy’s arraignment, he and his father, Laurence Clark (Clark) consulted with three lawyers, who offered to represent Timothy for fees between $3,000 and $10,000. Shortly after the arrest, Clark went to Fordham’s home to service an alarm system which he had installed several years before. While there, Clark discussed Timothy’s arrest with Fordham’s wife who invited Clark to discuss the case with Fordham. Fordham then met with Clark and Timothy.
At this meeting, Timothy described the incidents leading to his arrest and the charges against him. Fordham, whom the hearing committee described as a “very experienced senior trial attorney with impressive credentials,” told Clark and Timothy that he had never represented a client in a driving while under the influence case or in any criminal matter, and he had never tried a case in the District Court. The hearing committee found that “Fordham explained that although he lacked experience in this area, he was a knowledgeable and hard-working attorney and that he believed he could competently represent Timothy.” Fordham, described himself as “efficient and economic in the use of [his] time.” . . . Towards the end of the meeting, Fordham told the Clarks that he worked on [a] time charge basis and that he billed monthly. . . . After the meeting, Clark hired Fordham to represent Timothy.
According to the hearing committee’s findings, Fordham filed four pretrial motions on Timothy’s behalf, two of which were allowed. . . . [At the bench trial] [t]he judge found Timothy not guilty of driving while under the influence. . . . [Fordham sent six monthly bills.] The bills totaled $50,022.25, reflecting 227 hours of billed time, 153 hours of which were expended by Fordham and seventy-four of which were his associates’ time. Clark did not pay the first two bills when they became due and expressed to Fordham his concern about their amount. Clark paid Fordham $10,000 on June 20, 1989. At that time, Fordham assured Clark that most of the work had been completed, “other than taking [the case] to trial.” Clark did not make any subsequent payments. Fordham requested Clark to sign a promissory note evidencing his debt to Fordham and, on October 7, 1989, Clark did so. In the October 13, 1989 826bill, Fordham added a charge of $5,000 as a “retroactive increase” in fees. On November Fordham, sent Clark a bill for $15,000. . . .
In concluding that Fordham did not charge a clearly excessive fee, the board adopted, with limited exception, the hearing committee’s report. The board’s and the hearing committee’s reasons for dismissing the petition are as follows: Bar counsel and Fordham stipulated that Fordham acted conscientiously, diligently, and in good faith in his representation of the client and his billing on the case. Although Fordham lacked experience in criminal law, he is a “seasoned and well-respected civil lawyer.” The more than 200 hours spent preparing the OUI case were necessary “in part to educate [Fordham] in the relevant substantive law and court procedures,” because he had never tried an OUI case or appeared in the District Court. The board noted that “[al]though none of the experts who testified at the disciplinary hearing had ever heard of a fee in excess of $15,000 for a first-offense OUI case, the hearing committee found that [Clark] had entered into the transaction with open eyes after interviewing other lawyers with more experience in such matters.” The board also thought significant that Clark “later acquiesced, despite mild expressions of concern, in [Fordham’s] billing practices.” Moreover, the Clarks specifically instructed Fordham that they would not consider a guilty plea by Timothy. Rather they were interested only in pursuing the case to trial. Finally, Timothy obtained the result he sought: an acquittal. . . . “In the instant case we are persuaded that the hearing committee’s and the board’s determinations that a clearly excessive fee was not charged are not warranted.”
The first factor listed in [the relevant Rule] requires examining “[t]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” Although the hearing committee determined that Fordham “spent a large number of hours on [the] matter, in essence learning from scratch what others . . . already knew,” it “[did] not credit Bar Counsel’s argument that Fordham violated [the Rule] by spending too many hours.” . . . We disagree.
Four witnesses testified before the hearing committee as experts on OUI cases. One of the experts, testifying on behalf of bar counsel, opined that “the amount of time spent in this case is clearly excessive.” He testified that there were no unusual circumstances in the OUI charge against Timothy and that it was a “standard operating under the influence case.” The witness did agree that Fordham’s argument for suppression of the breathalyzer test results, which was successful, was novel and would have justified additional time and labor. He also acknowledged that the acquittal was a good result; even with the suppression of the breathalyzer tests, he testified, the chances of an acquittal would have been “[n]ot likely at a bench trial.” The witness estimated that it would have been necessary, for thorough preparation of 827the case including the novel breathalyzer suppression argument, to have billed twenty to thirty hours for preparation, not including trial time.
A second expert, testifying on behalf of bar counsel, expressed his belief that the issues presented in this case were not particularly difficult, nor novel, and that “[t]he degree of skill required to defend a case such as this . . . was not that high.” He did recognize, however, that the theory that Fordham utilized to suppress the breathalyzer tests was impressive and one of which he had previously never heard. Nonetheless, the witness concluded that “clearly there is no way that [he] could justify these kind of hours to do this kind of work.” He estimated that an OUI case involving these types of issues would require sixteen hours of trial preparation and approximately fifteen hours of trial time. . . .
An expert called by Fordham testified that the facts of Timothy’s case presented a challenge and that without the suppression of the breathalyzer test results it would have been “an almost impossible situation in terms of prevailing on the trier of fact.” He further stated that, based on the particulars in Timothy’s case, he believed that Fordham’s hours were not excessive and, in fact, he, the witness, would have spent a comparable amount of time. The witness later admitted, however, that within the past five years, the OUI cases which he had brought to trial required no more than a total of forty billed hours, which encompassed all preparation and court appearances. . . .
The fourth expert witness, called by Fordham, testified that she believed the case was “extremely tough” and that the breathalyzer suppression theory was novel. She testified that, although the time and labor consumed on the case was more than usual in defending an OUI charge, the hours were not excessive. They were not excessive, she explained, because the case was particularly difficult due to the “stakes [and] the evidence.” She conceded, however, that legal issues in defending OUI charges are “pretty standard” and that the issues presented in this case were not unusual. Furthermore, the witness testified that challenging the breathalyzer test due to the .02 discrepancy was not unusual, but the theory on which Fordham proceeded was novel. Finally, she stated that she thought she may have known of one person who might have spent close to one hundred hours on a difficult OUI case; she was not sure; but she had never heard of a fee in excess of $10,000 for a bench trial.
In considering whether a fee is “clearly excessive” . . . the first factor to be considered pursuant to that rule is “the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” . . . Based on the testimony of the four experts, the number of hours devoted in Timothy’s OUI case by Fordham and his associates was substantially in excess of the hours that a prudent experienced lawyer would have spent. . . .
[Another] factor to be considered in ascertaining the reasonableness of a fee is its comparability to “[t]he fee customarily charged in the 828locality for similar legal services.” The hearing committee made no finding as to the comparability of Fordham’s fee with the fees customarily charged in the locality for similar services. However, one of bar counsel’s expert witnesses testified that he had never heard of a fee in excess of $15,000 to defend a first OUI charge, and the customary flat fee in an OUI case, including trial, “runs from $1,000 to $7,500.” Bar counsel’s other expert testified that he had never heard of a fee in excess of $10,000 for a bench trial. In his view, the customary charge for a case similar to Timothy’s would vary between $1,500 and $5,000. One of Fordham’ s experts testified that she considered a $40,000 or $50,000 fee for defending an OUI charge “unusual and certainly higher by far than any I’ve ever seen before.” The witness had never charged a fee of more than $3,500 for representing a client at a bench trial to defend a first offense OUI charge. She further testified that she believed an “average OUI in the bench session is two thousand [dollars] and sometimes less.” . . .
Although finding that Fordham’s fee was “much higher than the fee charged by many attorneys with more experience litigating driving under the influence cases,” the hearing committee nevertheless determined that the fee charged by Fordham was not clearly excessive because Clark “went into the relationship with Fordham with open eyes,” Fordham’s fee fell within a “safe harbor,” and Clark acquiesced in Fordham’s fee by not strenuously objecting to his bills. The board accepted the hearing committee’s analysis apart from the committee’s reliance on the “safe harbor” rule. . . .
It is also significant, however, that the hearing committee found that “[d]espite Fordham’s disclaimers concerning his experience, Clark did not appear to have understood in any real sense the implications of choosing Fordham to represent Timothy. Fordham did not give Clark any estimate of the total expected fee or the number of $200 hours that would be required.” The express finding of the hearing committee that Clark “did not appear to have understood in any real sense the implications of choosing Fordham to represent Timothy” directly militates against the finding that Clark entered into the agreement “with open eyes.” . . .
Finally, bar counsel challenges the hearing committee’s finding that “if Clark objected to the numbers of hours being spent by Fordham, he could have spoken up with some force when he began receiving bills.” Bar counsel notes, and we agree, that “[t]he test . . . is whether the fee ‘charged’ is clearly excessive, not whether the fee is accepted as valid or acquiesced in by the client.” Therefore, we conclude that the hearing committee and the board erred in not concluding that Fordham’s fee was clearly excessive.
Fordham argues that our imposition of discipline would offend his right to due process. . . . Fordham contends that the bar and, therefore, he, have not been given fair notice through prior decisions of this court or the express language of [the relevant Rule] that discipline may be imposed for billing excessive hours that were nonetheless spent diligently 829and in good faith. . . . [However,] charging a clearly excessive fee, Fordham departed substantially from the obligation of professional responsibility that he owed to his client. The ABA Model Standards for Imposing Lawyer Sanctions § 7.3 (1992) endorses a public reprimand as the appropriate sanction for charging a clearly excessive fee. We deem such a sanction appropriate in this case.
1.Notice that Rule 1.5(a), printed above, sets forth numerous factors that bear on whether a fee is reasonable or, alternatively, excessive. Do you agree with the list? The Restatement (Third) of the Law Governing Lawyers § 34, comment c provides that, in addition to the eight factors identified by Rule 1.5: “Other factors might also be relevant, such as the client’s sophistication, the disclosures made to the client, and the client’s ability to pay.” According to the Restatement:
Those factors might be viewed as responding to three questions. First, when the contract was made, did the lawyer afford the client a free and informed choice? Relevant circumstances include whether the client was sophisticated in entering into such arrangements, whether the client was a fiduciary whose beneficiary deserves special protection, whether the client had a reasonable opportunity to seek another lawyer, whether the lawyer adequately explained the probable cost and other implications of the proposed fee contract, whether the client understood the alternatives available from this lawyer and others, and whether the lawyer explained the benefits and drawbacks of the proposed legal services without misleading intimations. Fees agreed to by clients sophisticated in entering into such arrangements (such as a fee contract made by inside legal counsel in behalf of a corporation) should almost invariably be found reasonable.
Second, does the contract provide for a fee within the range commonly charged by other lawyers in similar representations? To the extent competition for legal services exists among lawyers in the relevant community, a tribunal can assume that the competition has produced an appropriate level of fee charges. A stated hourly rate, for example, should be compared with the hourly rates charged by lawyers of comparable qualifications for comparable services, and the number of hours claimed should be compared with those commonly invested in similar representations. The percentage in a contingent-fee contract should be compared to percentages commonly used in similar representations for similar services (for example, preparing and trying a novel products-liability claim). . . .
Third, was there a subsequent change in circumstances that made the fee contract unreasonable? Although reasonableness is usually assessed as of the time the contract was entered into, later events might be relevant. Some fee contracts make the fee turn on 830later events. Accordingly, the reasonableness of a fee due under an hourly rate contract, for example, depends on whether the number of hours the lawyer worked was reasonable in light of the matter and client. It is also relevant whether the lawyer provided poor service, such as might make unreasonable a fee that would be appropriate for better services, or services that were better or more successful than normally would have been expected. . . .
Do you agree with the Restatement’s analysis? Should some of these considerations be incorporated into Rule 1.5(a)?
2.If you had been a member of the Massachusetts Supreme Court, what would you have decided in Fordham? What could, or should, Fordham have done differently?
3.As noted above, professional discipline for the charging of excessive fees is very rare. Rather than professional discipline, bar authorities have viewed the appropriate remedy to be malpractice claims, breach of contract actions, or defenses in litigation by attorneys to collect their fees. Yet, as Chapter 3 notes, these self-help mechanisms are far from perfect. What, if anything, might be better?
4.Under what circumstances should courts and bar disciplinary counsel protect clients from fee agreements that they have freely, but foolishly, accepted? In the absence of fraud, deceit, or coercion, we do not generally police the price of goods or services. Is it unfair to single out lawyers for special regulation? Consider the following claim:
[O]ne searches . . . in vain to discover precisely why a lawyer, acting without deceit, without coercion, and without any other form of untoward conduct is not free to price legal services at what a client is willing to pay, reasonable or otherwise. Most other actors in the marketplace can do that—why not lawyers? When professional rhetoric is set aside all that is left is an extraordinary, socialist maxim that lawyers should be ashamed of making “too much” money.178
Do you agree? If so, are there any circumstances in which courts should set aside agreements that clients negotiated with “open eyes?”
Professor Leonard Gross, likewise, suggests that efforts to police fees are futile and misdirected. Gross argues:
[T]he public already thinks that lawyers often gouge their clients. Whether courts reduce or eliminate fees in a few selected cases will hardly make a difference. Second, it does not matter whether the public thinks that lawyers in general overcharge. What matters is how that opinion might impact people’s conduct. As long as clients are happy with their own attorneys, and as long as clients do not refuse to retain counsel because of the belief that all lawyers 831overcharge, there is no reason to worry about how fees affect the public’s view of lawyers.179
What is your view?
5.Should nonrefundable retainers be prohibited? These retainers generally take one of two forms. One is an “engagement” fee or “general retainer,” which is a deposit by the client to assure that the attorney will handle the matter. Lawyers earn this fee at the moment they lend their name to the case; such a fee is said to compensate for the attorney’s reputation, commitment to the client, and reservation of future time. A second type of nonrefundable fee is a “special” retainer. When there is a “special” retainer, services are billed against that initial sum, but, at the conclusion of the case, the attorney keeps any part of the retainer that has not yet been charged.
Several jurisdictions prohibit certain types of nonrefundable fees. In one leading case, the New York Court of Appeals disallowed a special retainer that would have enabled a divorce lawyer to collect substantial sums for little or no work. In the court’s view, “nonrefundable retainer fee agreements diminish the core of the fiduciary relationship by substantially altering and economically chilling the client’s unbridled prerogative to walk away from the lawyer.” Matter of Cooperman, 633 N.E.2d 1069, 1072–73 (N.Y. 1994). “To answer that the client can technically still terminate,” said the court, “misses the reality of the economic coercion that pervades such matters. If special nonrefundable retainers are allowed to flourish, clients would be relegated to hostage status in an unwanted fiduciary relationship—an utter anomaly.” Id. Do you agree with that reasoning? The Restatement § 34, comment e, authorizes nonrefundable retainers to the extent that they bear a reasonable relationship to the income that lawyers sacrifice or expenses they incur as a consequence of accepting the client, including such costs “as turning away other clients (for reasons of time or due to conflicts of interest), hiring new associates so as to be able to take the client’s matter, [or] keeping up with the relevant field.”
6.Under what, if any, circumstances, should courts set aside fee agreements where the client is a sophisticated commercial player? In Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866 (9th Cir. 1979), the court enforced a $1 million fee ($4.2 million in current dollars) for services that turned out to involve filing one petition for certiorari. The case arose from antitrust proceedings in which Telex obtained a $259 million judgment against IBM but lost an $18 million counterclaim. On appeal, IBM won reversal of the judgment and affirmance of its counterclaim. In the face of liability substantial enough to bankrupt the company, Telex sought the best available lawyer for its petition to the Supreme Court. The company settled on a partner at Brobeck and agreed to a complicated contract specifying different fees contingent on different outcomes, including an agreement to pay a $1 million fee upon grant of Telex’s petition for certiorari. After the Supreme Court granted certiorari, Telex and IBM reached a settlement in which each dropped their claims, but Brobeck still claimed the right to collect 832the $1 million fee. In rejecting Telex’s claim that the fee was unconscionable, the court concluded that the contract must be reviewed “with reference to the time it was made and cannot be resolved by hindsight.” 602 F.2d at 875. The court elaborated:
This is not a case where one party took advantage of another’s ignorance, exerted superior bargaining power, or disguised unfair terms in small print. Rather, Telex, a multi-million corporation, represented by able counsel, sought to secure the best attorney it could find to prepare its petition for certiorari, insisting on a contingent fee contract. Brobeck fulfilled its obligation to gain a stay of judgment and to prepare and file the petition for certiorari. Although the minimum fee was clearly high, Telex received substantial value from Brobeck’s services.
Id. Recall, as noted above, that the Restatement § 34, comment c provides: “Fees agreed to by clients sophisticated in entering into such arrangements (such as a fee contract made by inside legal counsel in behalf of a corporation) should almost invariably be found reasonable.” Do you agree? Why or why not?
2.Inflated Charges and Other Irregularities
Fee-related abuses fall across a spectrum, reflecting everything from flagrant fraud and “creative timekeeping” to sloppy accounting and inefficient staffing. The frequency of such activity is difficult to gauge, since many abuses constitute the “perfect crime”: It is often impossible, even for sophisticated clients, to verify whether certain tasks are essential and whether the time that lawyers charge for completing them is reasonable or accurate.
Still, the spotty evidence we have suggests that overbilling is anything but exceptional. Auditors summoned to review charges find demonstrable fraud in about 5 to 10 percent of the bills they review and questionable practices (such as overstaffing, performing unnecessary work, and double billing two clients for the same task or time) in another 25 to 35 percent of scrutinized invoices. Similarly, a survey of practicing lawyers reported that only 44 percent of respondents said they were never influenced by the temptation to do more work than the client needed, while 43 percent of respondents believed that at least 10 percent of work by American lawyers is unnecessary. Only half thought double billing was unethical; 64 percent reported never engaging in the practice.180
The basic problem arises from the difference in lawyers’ and clients’ interests. An attorney’s goal is often to maximize profits, while a client’s goal is to maximize value and minimize costs. If lawyers are charging by the hour and lack other equally profitable uses for their time, they have an incentive to prolong projects. When billing patterns also affect power, 833promotion, retention, and compensation within law firms, those incentives intensify. Yet lawyers rarely acknowledge, let alone disclose, the obvious conflicts of interest that the billable hour system creates.181
The problem is compounded by the amount of work that firms increasingly demand. For many lawyers, quotas hovering around 2,000 hours a year are common.182 Most estimates indicate that about a quarter of lawyers’ office time cannot be billed honestly to clients; administrative matters, firm meetings, and personal needs all require attention. Thus, to generate 2,000 billable hours, attorneys typically need to work some nine hours a day, six days a week, with limited vacation. As then-Chief Justice Rehnquist once noted, if lawyers are expected to bill at current levels, “there are bound to be temptations to exaggerate the hours put in.”183 Or, as associates at Clifford Chance less diplomatically observed in an internal memorandum leaked to the press, the firm’s “profoundly unrealistic” billable hour requirements encouraged “padding of hours, inefficient work, repetition of tasks, and other problems.”184
In the face of such pressures, rationalizations for inflating charges come readily to hand. Studies of billing abuses find that lawyers often insist that their work really was “worth more” than the time it required. Others use upward “adjustments” to compensate for hours they assume they forget to claim. Some associates acknowledge padding if the client is “a jerk,” has deep pockets, or has agreed to an estimated charge.185
Making matters worse, internal law firm procedures are not always adequately structured to deter or police fee-related misconduct. In surveys of associates, only 40 percent indicated that their firms had written billing guidelines; roughly a third to a half of associates reported that they received little or no instruction on fee-related practices.186 When the issue is padding or meter running, supervising lawyers too often look the other way or fail to look at all.
Finally, in the rare instances when significant misconduct comes to light, substantial responses seldom follow. For example, when email chatter between associates at DLA Piper became public, in which one associate boasted, “That bill shall know no limits,” the firm shook it off 834as an “inexcusable effort at humor.”187 These justifications are apparently commonplace. In one survey of lawyers convicted of billing fraud, fewer than half of firms reported the associate’s or partner’s criminal conduct to bar disciplinary authorities or prosecutors.188 In most cases, the only penalty for excessive fees is a reduction of charges or reimbursement for overpayments, coupled with a loss of future business or favorable recommendations from the client. Given the low probability of detection, many believe that such sanctions provide inadequate deterrence. At the same time, however, the mistrust surrounding billing has often strained lawyer-client relationships and has given rise to the proliferation of new firms that specialize in “disputing others’ bills—as well as in-house nudniks who demand copious details and then flyspeck them.”189
In response to these problems, commentators generally recommend more stringent oversight, stiffer penalties, and greater experimentation with alternative billing. Some courts agree and have required lawyers to forfeit all or most of their fees in cases of serious ethical abuse.190 Most experts also recommend that all firms establish policies, training, and oversight structures to create internal cultures of billing integrity, which are likely to be more effective than sanctions in dealing with hard-to-detect abuses.191 The ABA’s Commission Report on Billable Hours identifies best and worst practices to guide that effort. Among the best practices is a policy emphasizing that an “absolute requirement and condition of continued employment [is] that lawyers be scrupulously honest in recording time” and that “violators will be terminated.” Among the worst practices are policies that tie lawyers’ compensation to hours worked, irrespective of the work’s quality.192 Many experts further recommend that firms found guilty of billing abuse should be required to develop appropriate oversight procedures, including random billing audits, and that lawyers who knowingly fail to report billing fraud should be subject to professional discipline.
8351.Which, if any, of these reform proposals would you support? How effective do you believe they would be in addressing the problems raised by the preceding reading?
2.A California lawyer who says he was fired from his firm because he couldn’t meet a quota requiring 3,000 billable hours a year filed suit, claiming that the requirement essentially demanded billing fraud. The suit alleged that he was instructed to charge for his “thinking time” and to bill every task in six-minute increments, even if it involved only reading a brief email.193 If the allegations are true, should the lawyer prevail?
3.Are more innovative billing structures necessary? Many experts believe that alternative billing can help combat the most corrosive aspects of hourly fees, particularly padding, inefficiency, and the devaluation of non-billable activities.194 These beliefs are starting to translate into changed practices. As of 2017, 97 percent of surveyed firms reported using some sort of alternative fee structure other than an hourly rate on at least some matters.195 These alternative models include fixed fees, fees tied to specific measures of success, and volume discounts, among other, more complex arrangements.196
4.Costs and expenses constitute another battleground. Per Rule 1.5(a), the lawyer can pass the costs and expenses of litigation to the client, but those costs and expenses must be “reasonable” and must “reasonably reflect[ ] the cost incurred by the lawyer.”197 As to what qualifies, ABA Formal Opinion 93–379 (1993) advises that, without clear client consent, “[a] lawyer may not charge a client for overhead expenses generally associated with properly maintaining, staffing and equipping an office,” and “[a] lawyer may not charge a client more than her disbursements for services provided by third parties like court reporters, travel agents or expert witnesses.” In sum, “in the absence of an agreement to the contrary, it is impermissible for a lawyer to create an additional source of profit for the law firm beyond that which is contained in the provision of professional services themselves. The lawyer’s stock in trade is the sale of legal services, not photocopy paper, tuna fish sandwiches, computer time or messenger services.”
Still, some practitioners haven’t gotten the message. Minor scandals have surfaced involving corporate law firm spending—with reports of $77.50 faxes, $22 document deliveries, and nearly $9 danishes, all charged to 836clients.198 Meanwhile, running shoes have been billed as “ground transportation,” and dry cleaning for a toupee has been labeled a litigation expense.199 In one survey, only 42 percent of surveyed lawyers thought lawyers should not mark up overhead costs billed to clients.200 If you were a corporate client who learned that your law firm engaged in such practices, how would you respond?
Referral fees—where an attorney is paid for handing off a case to another lawyer—are also hotly debated. Common particularly in personal injury work, these fees were banned for much of the last century, as critics charged that it was unethical and improper for lawyers to “get paid for no work.”201 Yet, in 1983, the ban was relaxed to reflect the current notion that fees can be shared between lawyers, even if the referring lawyer does not work on the client matter, as long as both lawyers accept joint responsibility for the representation.
The impetus to change the rule apparently came from the Annual Chief Justice Earl Warren Conference on Advocacy in 1978. There, participants recommended by a two-to-one margin that referral fees be permitted, provided there is full disclosure to the client. In recommending the change, conferees concluded: (a) that the traditional prohibition on referral fees was flagrantly violated and violations were rarely prosecuted; (b) fee splitting could help clients by encouraging the transfer of their cases to more competent practitioners; (c) there was little or no evidence to suggest that clients pay higher fees under fee-splitting arrangements, particularly since most fee splitting occurs in contingent fee cases where the contingency fee percentage remains the same after transfer; and (d) prohibiting referral fees encouraged attorneys to retain matters that they could not effectively or efficiently pursue, which was detrimental both to clients and the development of substantive law. Some also charged that the traditional prohibition, which affected mostly personal injury practitioners who tended to practice alone or in small firms, reeked of hypocrisy, since defense-side lawyers within the same firm can pass cases around and share fees, irrespective of any formal prohibition.202
Attempting to strike a balance of permitting referral fees, while offering adequate protection to clients, Rule 1.5(e) provides:
837(e)A division of a fee between lawyers who are not in the same firm may be made only if:
(1)the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2)the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3)the total fee is reasonable.203
Comment 7 to Rule 1.5 further specifies: “A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter.”
Now blessed by Rule 1.5(e), referral fees are extremely prevalent. Many (particularly elite) personal injury lawyers obtain the majority or vast majority of their clients via referral networks, though they pay dearly for these referrals, as referral fees in personal injury cases appear to range between 30 percent and 50 percent of the entire fee generated.204
1.Should state bars restrict the fees paid to referring lawyers?
2.Sara Parikh’s study, “How the Spider Catches the Fly,” offers some empirical support for the current, comparatively lenient, rule on fee splitting. Drawing on detailed interviews with personal injury lawyers, Parikh maps a world of “embedded referral relationships [that] promote trust, efficiency, joint problem solving, and quality.”205 Unsophisticated clients, she says, need assistance in finding a lawyer who will be willing and competent to handle their case. That assistance is most likely to be forthcoming if lawyers have a financial stake in referring the clients to the right practitioner. Although some personal injury attorneys resented paying colleagues “a lot of money for doing nothing,” most saw the wisdom of the system.206 As one lawyer explained:
We live in a world where some lawyers are more capable than others. It is in the client’s best interest to find the most capable lawyer he can to represent him. Unfortunately, the client is not in a very good position to know the difference. . . . So, the public good is really served by the referral system. The likelihood of the ordinary injured person to get to a better lawyer as a result of the 838referral system is tremendous. But, it wouldn’t occur nearly as much unless there was some incentive for that mainline, street-location lawyer to do such a thing. (High-end, age 60).
Referral networks also have an advantage, Parikh finds, because receiving the majority of one’s cases via referrals allows elite personal injury attorneys to “avoid some of the more distasteful means of getting business, such as advertising or chasing cases.”207 If such findings offer an accurate picture of referral networks, are there any changes in the Model Rules that you would recommend?
3.Though lawyers can—and frequently do—get compensated for referring cases to one another, nonlawyers are barred from receiving such payments. Why do you suppose that is? Is that line-drawing justified?208
4.A related and increasingly important issue involves reciprocal referral agreements between lawyers and other service providers. To provide guidance concerning these agreements, the ABA House of Delegates recently adopted an addition to Rule 7.2:
(b)A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may . . .
(4)refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i)the reciprocal agreement is not exclusive; and
(ii)the client is informed of the existence and nature of the agreement.209
Comment 8 to Rule 7.2 adds that such reciprocal agreements must not interfere with “the lawyer’s professional judgment as to making referrals or providing substantive legal services,” and are subject to the conflicts provisions of Rule 1.7.
What kinds of ethical problems might arise under these reciprocal agreements? As a practical matter, are the requirements of non-exclusivity and non-interference with professional judgment enforceable? Would any other protection be appropriate?
One of the most longstanding controversies surrounding fee regulation involves fees where payment is conditioned on a certain outcome. Early English common law banned contingent fees entirely but, in the United States, such fees have long been accepted. See Stanton v. Embrey, 93 U.S. 548, 556 (1876) (declaring that the legality of such fees 839was “beyond legitimate controversy”). But even though they have long been tolerated—and are now quite prevalent—these fees have prompted continuing criticism and intermittent restrictions.
Defenders of contingent fees generally emphasize four main advantages. Such arrangements:
1)give lawyers an incentive to pursue matters competently and diligently, even when the client is unsophisticated and would have difficulty evaluating the quality or quantity of professional services he or she receives;
2)give impecunious clients “keys to the courthouse”—make it so even lower- or middle-class individuals can afford legal assistance;
3)act as insurance against non-recovery—enable clients to shift most or all of the risk of an unsuccessful suit to attorneys, who may be in a better position to bear or spread the loss; and
4)give contingency fee lawyers a strong incentive to screen cases for merit prior to filing, offering what some call the “first line of defense against frivolous litigation.”210
Furthermore, by turning to the contingency fee, plaintiffs (and defendants, in the case of reverse contingency fees) can avoid the myriad problems (discussed above) associated with hourly-rate billing.
Still, contingency fees are far from perfect. First, though contingency fees better align the client and attorney’s financial interests than either flat or hourly fees, that alignment is still imperfect, generating significant agency costs. The problem is as follows:
[Most] contingency fee [clients] are indifferent to incremental additional expenditures of attorney time and effort. While clients do bear some additional direct costs as a case progresses (such as court costs, travel costs, expert witness fees, and the like), from the client’s perspective, attorney time is costless: The more of it the better. It is in the attorney’s short-term economic interest, meanwhile, to secure the maximum fee with the minimum expenditure of time and effort. To accomplish this goal, attorneys have an incentive to invest in a claim only up to the point at which further investment is not profitable for the firm—a level that may be far below the investment needed to produce the optimal award for the client. Particularly when the plaintiff’s injury is modest and the potential upside is limited, rather than squeezing every dollar out of every case, it is in an attorney’s short-term financial interest to seek a high volume of cases and quickly process each, expending minimal time and resources on case development.211
840Critics of contingency fee arrangements also object to fee structures in which a lawyer’s financial return bears little relationship to the effort expended or risk assumed. In cases with straightforward facts, low risk, and large damages, a standard one-third percentage recovery might provide—and, on occasion, has provided—a windfall fee, equivalent to thousands of dollars for each hour worked. Further, critics point out that many clients’ consent to contingency fees is anything but informed. Clients do not typically receive an option of an hourly fee, an indication of how much work their case will require, or a statement at the conclusion of the case indicating the hours worked and the effective hourly fee earned.212 In addition, drawing on insights from cognitive psychology and behavioral economics, Nora Freeman Engstrom has shown that the contingency fee is not particularly “salient” to legal consumers, meaning that clients are not particularly sensitive to the percentage fees they’re charged—potentially facilitating abuse.213
There are several responses to these criticisms. First, in response to charges of windfall fees, the ABA Committee on Professional Ethics questions the prevalence of genuinely risk-free contingency fee cases. As the ABA put it in ABA Formal Op. 94–389 (1994):
[T]he [often-heard criticism] may rest on a faulty notion as to the number of cases regarding which at the onset of the engagement the lawyer can say with certainty that the client will recover. Defendants often vigorously defend and even win cases where liability seems certain. Additionally, a previously undiscovered fact or an unexpected change in the law can suddenly transform a case that seemed a sure winner at the outset of representation into a certain loser.
Moreover, in the same opinion, the ABA also pointed out that, even if a case is easily and expeditiously settled, the contingency fee lawyer might still deserve a significant reward:
An early settlement offer is often prompted by the defendant’s recognition of the ability of the plaintiff’s lawyer fairly and accurately to value the case and to proceed effectively through trial and appeals if necessary. There is no ethical reason why the lawyer is not entitled to an appropriate consideration for this value that his engagement has brought to the case, even though it results in an early resolution.
Others also note that even seemingly high contingency fees on easy cases may be essential to subsidize other difficult cases that take years to litigate and result in financial outlays of thousands—or tens of thousands—of dollars for out-of-pocket expenses, but that result in no recovery.
841Furthermore, scholars assert that any attempt to evaluate contingency fees by looking only at hours worked is seriously misleading. Unlike a defense-side law firm lawyer (who really does provide only legal services):
[T]he contingency fee has always been understood to compensate plaintiffs’ lawyers for a trio of services: (1) professional services (actual lawyering), (2) banking services (advancing to clients the value of the lawyer’s professional services and out-of-pocket expenses), and (3) insurance services (insuring the value of the lawyers’ professional services and out-of-pocket expenses against the risk of non- or inadequate payment). And, it has also always been understood that contingency fee lawyers do—and should—earn higher effective hourly rates than their defense-side counterparts precisely because of the extra services they provide.214
Finally, others question the empirical premises on which many criticisms are based: Are contingency fee lawyers, as a group, receiving much higher payments? Leading legal empiricist Herbert Kritzer notes that there is little evidence that the average earnings of contingent fee attorneys are significantly higher than those of counsel who bill hourly.215
1.For decades, critics have complained about excessively high contingency fees and offered various fixes. One proposed solution is to arm clients with objective price and quality information before they sign retainer agreements. The thought is that such price and quality information would naturally spur some price competition, eliminating the need for heavy-handed reforms.216 Another idea is to require attorneys to disclose in writing at the conclusion of the representation the actual services performed and the number of hours spent—though critics point out that this requirement would demand that plaintiffs’ lawyers keep detailed and accurate time records, which, for reasons explored above, might prove difficult. (If lawyers pad bills even when dealing with sophisticated corporate counsel with whom they seek long-term relationships, how can we ensure they will be truthful when presenting time records to unsophisticated, one-shot, individual claimants?) Others suggest that courts could more actively review claimed fees—though, of course, this would (again) impose a substantial burden on the plaintiffs’ bar, as well as the already-overworked judiciary. A number of jurisdictions have also considered a proposal developed by the Manhattan Institute, which limits 842contingency awards where the plaintiff accepts an early settlement offer.217 Others respond, however, that the surest effect of that proposal would be to dramatically reduce the legal representation available to individual, impecunious claimants. Do any of these suggested reforms strike you as promising?
2.The most common way to rein in “windfall” fees is to cap them—and numerous jurisdictions have restricted contingency fees, either via a flat cap or via a graduated scale that entitles lawyers to a smaller percentage as a client’s recovery ticks upward. 218
Contingency fee caps undeniably prevent windfall fees but at substantial cost, as studies suggest that they discourage lawyers from accepting or fully litigating even meritorious claims. Thus, one prominent study considering the effect of contingency fee caps in medical malpractice claims found that fee ceilings increased the percentage of dropped medical malpractice cases by 5 percent, decreased settlement size by 9 percent, and reduced the proportion of cases litigated to a verdict by 1.5 percent. The authors found that the cases most likely to be affected by contingency fee caps involved cases with only minor injuries or cases with severe injuries but with uncertain evidence of negligence. 219 In addition, some research also suggests that, if the goal of fee caps is really to protect individual plaintiffs, these caps might backfire, as high fees can sometimes benefit individual clients by encouraging greater attorney effort. 220
If the effect of a contingency fee cap is to curb the occasional windfall fee but significantly diminish lawyers’ willingness to take, or fully litigate, risky contingent fee cases, is the tradeoff worthwhile? Who should decide? Does it worry you that the most vocal proponents of contingency fee caps are not consumer groups but, rather, groups that represent corporate, insurance, and defense-side interests—and, thus, those who have the most to gain by curtailing individual’s ability to seek redress? 221
8433.Why should contingency fees be capped, when some defense-side lawyers charge more than $1,800 per hour?222 What, if anything, justifies this asymmetric paternalism?
4.Contingency fees are impermissible in two instances: if the legal representation involves domestic relations or if it involves criminal defense. Rule 1.5(d) provides that a lawyer cannot enter into an arrangement for, charge, or collect:
(1)any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2)a contingent fee for representing a defendant in a criminal case.
Rule 1.5(d)(1) offers no justification for the ban on contingency fees in domestic relations matters, though a commonly articulated justification was offered more than a century ago in Jordan v. Westerman, 28 N.W. 826, 830 (Mich. 1886):
Public policy is interested in maintaining the family relation. The interests of society require that those relations shall not be lightly severed, that families shall not be broken up for inadequate causes, or from unworthy motives; and where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible.
[Contingency fee contracts in domestic relations matters] tend directly to prevent such reconciliation, and, if legal and valid, tend directly to bring around alienation of husband and wife by offering a strong inducement, amounting to a premium, to induce and advise the dissolution of the marriage ties as a method of obtaining relief from real or fancied grievances which otherwise would pass unnoticed.
Further, since courts can require one spouse to pay the other spouse’s fees out of marital assets, the need for contingency fees, some insist, is not as pressing here as it is in other civil contexts. Even so, the American Academy of Matrimonial Lawyers has urged that the prohibition be relaxed to ensure that clients don’t forego competent assistance in complex cases.223 What is your view?
Similarly, Rule 1.5(d)(2) offers no justification for the ban on contingency fees in criminal defense matters, though Ethical Consideration 2–20 of the Model Code explained that contingency agreements are impermissible because the lawyers’ services “do not produce a res with which to pay the fee.” That justification seems shaky, however. Courts have often approved the use of contingency arrangements in civil suits that do not create a res. Moreover, in criminal matters, legal representation that 844prevents forfeiture of assets or incarceration could increase defendants’ ability to pay. Some commentators have suggested that something else might justify the ban.224 Why might contingency fees be problematic in the criminal justice context? As you consider this question, recall that an advantage of the contingency fee, in the civil justice context, is that it encourages lawyers to screen cases carefully for merit, only accepting those clients with “winning” claims and strong entitlements to relief. Might this screening, so salutary in the civil context, be problematic when applied to criminal defendants?
5.Reflecting corporate clients’ increasing interest in non-hourly-fee billing, some businesses are increasingly opting to pay counsel on a contingency fee model. Douglas Richmond explains:
Today, contingent fees are commonplace in intellectual property and commercial litigation, with law firms of all sizes utilizing them. In one well-publicized case, Wiley Rein LLP, a large general practice firm in Washington, D.C., represented the plaintiff in a patent infringement action against Research in Motion Ltd., which manufactured BlackBerry devices. The case settled for $612.5 million, and Wiley Rein received a contingent fee of more than $200 million. In 2015, Chicago-based general practice firm Schiff Hardin LLP earned a contingent fee of nearly $32 million for successfully representing The Flintkote Co. in litigation against Imperial Tobacco Canada Ltd. in connection with an asbestos settlement. In 2016, litigation powerhouse Kirkland & Ellis LLP received a $70 million contingent fee for its work recovering environmental remediation costs on behalf of a litigation trust created to pursue claims by the federal government and several states against two oil companies. Also in 2016, global law firm K&L Gates LLP, which represented Carnegie Mellon University in lengthy patent litigation against Marvell Technology Group Ltd. and Marvell Semiconductor Inc., earned a $210 million contingent fee when the case settled for $750 million. Houston-based Baker Botts LLP “posted a record year” in 2016, with its revenue elevated by multiple contingent fee representations. Finally, as reported in late 2016, Washington, D.C. litigation boutique Kellogg, Huber, Hansen, Todd, Evans & Figel earned a $506.3 million contingent fee from representing the National Credit Union Administration in subprime mortgage litigation against many of the world’s largest banks.225
Richmond offers two explanations for the above trend. First, he explains that organizational clients increasingly favor contingency fees because they believe that “[l]inking the lawyer’s compensation to a successful outcome in a matter supposedly encourages the lawyer—who has ‘skin in the game’—to be more creative, efficient, and result-oriented than she might be 845otherwise.”226 Second, “large law firms are warming to contingent fee engagements because some cases are potentially much more lucrative on a contingent fee basis than they would be if the firm billed by the hour.”227
6.How would you assess the reasonableness of “reverse” contingent fees for defense counsel in civil cases? In such contexts, the contingency fee rests not on the amount of money the client recovers, but rather, on the amount of money that a client (typically, the defendant) saves owing to the lawyer’s labors. This savings is notoriously tricky to calculate. Do you see why?
In Formal Opinion 93–373 (1993), the ABA acknowledged the difficulty of calculation but held that such contingency agreements are nevertheless permissible if the amount saved is “reasonably determinable,” the fee is “reasonable in amount,” and the client’s agreement is “fully informed.” In addition, the Committee emphasized, “it is incumbent on the defendant’s lawyer to fairly evaluate [a] plaintiff’s claim” and to provide a reasonable estimate of potential liability from which to assess any savings. What problems do you anticipate under such an approach? Are the risks offset by potential advantages?228
7.What happens if a client wants to fire a contingency fee lawyer? Clients are generally free to fire lawyers, even without “cause.” As a classic case put it: “That the client may at any time for any reason or without any reason discharge his attorney is a firmly established rule which springs from the personal and confidential nature of the relation which such a contract of employment calls into existence.” Martin v. Camp, 114 N.E. 46, 47–48 (N.Y. 1916). Rule 1.16, comment 4 formalizes this position, providing: “A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.” What happens, then, when a client exercises that right before a contingency fee case is over?
Generally, if the attorney is discharged by a dissatisfied client, the attorney will be entitled to recover in quantum meruit, which is Latin for “as much as he has deserved.” (Quantum meruit recoveries are generally calculated by reference to the number of hours worked multiplied by a reasonable hourly rate.229) If the client discharges the attorney shortly before settlement, so as to deprive an attorney of a contingent fee that was all but earned, courts will sometimes allow the attorney to receive a full contractual amount rather than quantum meruit. If the latter were not the rule, what might clients be tempted to do?
An issue that arises is the following: What happens when the plaintiff’s ultimate recovery is delayed, smaller than expected, or zero? On this, one commentator writes:
One issue that is not entirely resolved is whether the contract percent is a cap on the discharged attorney’s recovery. That is, is the discharged attorney limited to the percentage of the underlying 846recovery set by his contingent fee and, therefore, a zero recovery if the client recovers nothing in the underlying, action? Some jurisdictions . . . regard the occurrence of the contingency in the underlying suit as essential to the discharged attorney’s recovery and limit that recovery to the contract price, i.e., the contingent fee percentage applied to the recovery. Others have allowed the discharged attorney to sue at once for quantum meruit, thereby deeming the realization of the contingency and the amount actually recovered by the client as irrelevant in determining the quantum meruit fee. [States which take this approach include Illinois, Minnesota, New York, and Washington.] Still other courts, determining the discharged attorney’s fees after the client has recovered in the underlying suit, have allowed the attorney to recover in excess of the contract price.230
What outcome do you think is proper?
8.Low- and middle-income plaintiffs have trouble paying attorneys’ fees upfront—hence, the contingency fee. They also have trouble bearing the costs and expenses of litigation, which can often run into thousands, tens of thousands, or even millions of dollars. As a consequence, many contingency fee attorneys front these litigation expenses on behalf of their clients and demand repayment if—and only if—there is a sufficient recovery. If the case is lost, the lawyer typically absorbs the out-of-pocket investment. Rule 1.8(e) permits this arrangement, providing that the repayment of fees and costs “may be contingent on the outcome of the matter.”
It was not always thus. The Canons and then the Model Code obligated the client to repay her debt to the lawyer, in full, even if her case resulted in no recovery. The Model Code’s repayment provision was apparently discarded after lawyers and bar associations came to terms with the futility and inhumanity of seeking reimbursements from injured, defeated, and typically poor clients—and it also came to be known that the requirement was very frequently disobeyed.231 Still, though, a minority of states continue to require even losing clients to remain “ultimately liable for such expenses.”232 Is there any justification for that approach?
9.Evaluate the following analysis and criticism of contingency fees:
[T]he essence of the contingency fee is that it represents a kind of litigation insurance. . . . The crucial point . . . is that successful clients will pay their lawyers more than they would under alternative [hourly] fee arrangements, while unsuccessful clients pay their lawyers nothing. In effect, then, the lawyer—like an insurance company—subsidizes unsuccessful litigants out of premium revenues collected from successful clients. The extra emoluments paid by successful litigants amount to insurance 847premiums, insuring them against the possibility of failure. The contingency fee is at bottom a risk-spreading device. . . .
[However, t]he American-style percentage contingency fee . . . is an irrational method of distributing risk. Clients with higher awards pay higher fees to subsidize losers’ losses. If we assume that higher awards are entirely compensatory—no punitive damages—and that they represent the client’s actual damages, then the situation is this: the client who has suffered the greatest damages pays the largest number of dollars to subsidize unsuccessful litigants. He who has suffered the most pays the most—it is hard to imagine a justification for such a distributive principle.233
Do you agree?
Joseph Dowd approached Mary Corcoron, the widow of a man killed in a train crash, and advised her that she should obtain counsel even though the defendant had already offered a $1.4 million settlement. Dowd referred her to a Chicago firm, under a contract entitling him to a hefty referral fee. Two years later the firm advised Corcoron to settle the case for the same amount and agreed to take no fee. Dowd sued for his share, and the court of appeals granted his claim. In its view, if Corcoron had wished to make Dowd’s fee contingent on any amount above the $1.4 million, she should have so provided in her contract. Her response was “I was a naive widow.”234 Who should prevail?
Reference: Rule 1.5.
One reason that plaintiffs (and plaintiffs’ counsel) gravitate to class actions and joint representation is that, as a practical matter, some claims are simply too small to be individually litigated. A similar issue arises in the automobile accident context. After being injured in an auto accident, compensation is often needed to defray the cost of medical care and to compensate victims for lost wages. Many defendants, meanwhile, may be slow or reluctant to pay, suggesting legal representation is required. Yet personal injury lawyers, paid almost exclusively pursuant to contingency fees, often shy away from this kind of low-stakes (and low-return) representation.
848In a recent series of articles, Nora Freeman Engstrom suggests that a new breed of personal injury law firm has developed to fill this niche.235 She calls these firms settlement mills. According to Engstrom, settlement mills are high-volume personal injury law firms that aggressively advertise and settle what are generally low-value auto accident claims in a routinized manner. Based on Engstrom’s account, it appears that settlement mills practice law in a way that turns much of what we know about the traditional practice of law on its head. Three settlement mill traits particularly stand out. First, at these firms, the practice of law is viewed as a business, rather than a profession. As one settlement mill partner put it, he “always . . . approached this as a business first and a law firm second.”236
Second, the focus at settlement mills is not on the litigation—or the trial—of claims. The focus is squarely on claim settlement. Indeed, a few of the firms Engstrom has studied apparently never tried a case to verdict despite settling, literally, thousands of claims.237 This settlement focus, meanwhile, is sometimes maintained by quotas or contests. Settlement negotiators, who may or may not be lawyers, must settle a given number or dollar value of claims within a particular time period, or are offered rewards or prizes for doing so. One firm in Louisiana, for example, used a series of carrots and sticks to spur settlements. At that firm, nonlawyers negotiated settlements, and their compensation was tied to fees they generated. The firm bestowed a monthly lion award on the highest fee generator (to reward the king of the jungle) and gave a monthly “monkey” award to the lowest fee generator, who was said to have a “monkey on his back.” The firm also sponsored group contests, in which, if the negotiators generated a particular amount in fees during a particular period, everyone in the firm would receive group trips to exotic locales.238
Claims’ settlement values reflect mills’ distance from the formal law. Claim values, that is, are not based on an individualized assessment of how the claim would fare at trial, but are instead based on formulaic going rates worked out over time by insurance adjusters and settlement mill negotiators over the course of recurring negotiations. These going rates largely disassociate a claim’s substantive merit from its worth and cluster claim values within established parameters. As a settlement mill negotiator reported:
[E]ver[y] case has a potential value. These little soft tissue injury cases, two- or three-month duration cases, there isn’t a senior adjuster in town that doesn’t have a very set number. . . . 849[Y]ou know going in and they know going in about the value of this case.239
Settlement mills’ third particularly distinctive trait is the lack of emphasis on traditional “lawyering.” At these firms, there is very little legal research, factual investigation of claims, and substantive interaction with clients. In fact, at some settlement mills, it is not unusual for lawyers and clients never to meet.240 Meanwhile, the lawyers at settlement mills tend to describe the work as being very routinized and mechanized:
In many of these mills, rule violations abound. In delegating the settlement of claims to nonlawyers, settlement mills may violate Rule 5.5, which outlaws the unauthorized the practice of law. Some (like the Louisiana firm discussed above) share fees with nonlawyers, in violation of Rule 5.4. Some appear to charge unreasonably high contingency fees in relation to the effort exerted, in violation of Rule 1.5(a). Some keep clients so thoroughly in the dark that they violate Rules 1.4 and 1.2(a), which require reasonable communication. Some appear to facilitate claiming for non-meritorious, exaggerated, or fabricated claims, in violation of Rules 3.1 and 8.4. Finally, all settlement mills arguably fall below Rule 1.1’s minimal threshold of competence. Yet, these firms clearly provide some benefits. In the excerpt below, Engstrom explains why.
Nora Freeman Engstrom, “Sunlight and Settlement Mills”
86 New York University Law Review 805, 824–33 (2011).
[Many] deride the traditional tort system for, inter alia, (1) maintaining high transaction costs, (2) delaying compensation, (3) clogging courts, (4) delivering unpredictable lottery-like awards, [and] (5) 850denying compensation to many needy claimants. . . . [Notwithstanding their many flaws, settlement mills alleviate all five of these concerns.]
[First, many commentators] criticize the tort system for being “inordinately expensive to administer,” with transaction costs consuming roughly half of every dollar. Settlement mills are notable, then, for delivering compensation more cheaply. This savings is largely traceable to the fact that settlement mills file lawsuits far less frequently than most other, even high-volume, personal injury practitioners. No lawsuit, of course, means that defense counsel need not be retained and also that court costs, deposition costs, or expert witness fees need not accrue. RAND researchers estimate that such costs often consume about three percent of plaintiffs’ ultimate recovery, and, when auto accident victims do file lawsuits, defense attorneys’ fees and costs average roughly $9900. This means that, by rarely filing suit, settlement mills generate significant savings.
[Second, some fault the tort system for being] bedeviled by long delays. Although waits vary by case type and by jurisdiction, tort cases typically take over two years to litigate to a judgment or verdict, and studies suggest that delays are often substantial, even in seemingly straightforward auto cases and even in the absence of trial.
Settlement mills, then, are next notable for delivering compensation more quickly—usually within two to eight months. Part of this rapid resolution, perhaps a large part, flows naturally from the fact that settlement mill claimants’ injuries tend to be modest, and modest claims tend to be more rapidly resolved. . . . Still, even accounting for claim size, it appears that settlement mills resolve claims with relative speed—and this is no small feat. Almost half a century ago, one leading observer of the tort system wrote, “The speeding up of settlements . . . would do more to relieve the distress of injury victims than any other conceivable change in tort law administration.” By delivering relatively prompt compensation, settlement mills undoubtedly spare clients, many of whom lack adequate first-party protection and maintain only thin financial cushions, significant financial and emotional distress.
Third, [some criticize auto cases as being] the major cause of court congestion” and seek to remove such cases from the formal legal system in order to free courts “from their bondage to the automobile.” Settlement mills, by rarely filing lawsuits, accomplish much the same. And, of course, to the extent that settlement mills siphon disputes from the court system, society also saves (at least financially). The average public expenditure per case filed is roughly $1000, and the average public expenditure per trial probably reaches five figures.
Fourth, [many critics] deride the tort system as a “litigation lottery”: a haphazard and unpredictable “game of chance,” where “[o]ne seriously injured party may recover nothing at all . . . while another similarly injured receives an award far in excess of his actual loss.” And though the indictment is often overblown, it is true that the tort system is known 851to compensate claimants with similar injuries quite differently. . . . For various reasons, this unpredictability is problematic. It is troubling from a theoretical perspective, as it is contrary to horizontal equity—the elemental notion of justice that like victims should be treated in a like fashion. It creates legal and practical difficulties for defendants, as it is difficult to invest in the “right” level of precaution or obtain adequate insurance ex ante without some estimate of the liability in store ex post. And the practical consequences for the seriously injured plaintiff who receives nothing after mounting a protracted court challenge may be nothing short of dire.
Against this backdrop, settlement mills provide relative certainty. . . . Partly traceable to small claim size (which, at least in the short run, makes it cheaper for the insurer to pay something as opposed to contesting liability), and partly traceable to repeat-play dynamics (since settlement mills’ high case volumes ensure frequent adjuster-negotiator interaction), even cases with serious liability issues are often amicably resolved. Insurers will offer something (as opposed to an outright denial) for nearly every claim. As a nonlawyer negotiator from a Louisiana firm explained, “If it was a real legal dispute, sometimes, you know, [the insurance adjuster] would mention that fact or say, ‘Well, look, just to make this thing go away, I’m still willing to give you $5,000, $6,000.’ ” A negotiator from [another settlement mill] meanwhile recalled:
I remember getting a file from one of the paralegals, the statute [of limitations] had run like two days over. I knew the adjuster very, very well. Had dealt with him on several other cases. I asked him to do me—it wasn’t my case—to do me a big favor, let’s settle this as three days earlier before the statute ran, and he did.
It is not just that settlement mills are apt to provide something as opposed to nothing. . . . [S]ettlement values are also relatively predictable. Settlement mills tend to settle cases for formulaic “going rates”—i.e., values worked out over time between the settlement mill and insurance adjuster, often calculated based on the medical bills the claimant has accumulated. Guided by going rates, according to one settlement mill negotiator, “you know going in and [the adjusters] know going in about the value of this case.” “[S]omebody who gets a whiplash,” another explained, “they’re all the same, almost the same. . . . The combined effect of settlement mills’ ability to (1) virtually assure some payment and also (2) roughly predict the amount of that payment means that settlement mills are able to smooth the peaks and valleys of recovery, increasing the likelihood that, at least intra-firm, similar claims will be treated similarly. The litigation lottery concern that so troubles [tort critics], in short, is largely solved.
Fifth, [many] criticize the tort system for leaving so many accident victims uncompensated. . . . In their own unique way, settlement mills 852might fulfill this objective as well. . . . [One way they do this is] by funding advertising campaigns that encourage more individuals to file claims and retain counsel following an accidental injury. . . . [Another way settlement mills expand the pool of compensated claimants is by] giving the minimally injured—a group Steven Croley has dubbed “an important set of underrepresented civil litigants”—access to counsel that they might otherwise lack.
1.On balance, are settlement mills socially desirable?
2.If settlement mills violate ethical rules fairly regularly, why do you suppose they are able to keep operating? What might prevent ethical violations from coming to the attention of regulatory authorities?
3.Is it defensible for settlement mills to violate ethical rules in order to provide effective legal representation to formerly unrepresented individuals? If you worked for a state bar disciplinary agency and knew what Engstrom knew about settlement mills, would you attempt to sanction their attorneys for rule violations?
Many settlement mills promise close attorney-client relationships and individualized attention. For example, the law firm of E. Eric Guirard and Associates, which was in operation until the disbarment of Guirard and his partner in 2009, gave clients the “E Guarantee,” which promised: “Your case will be assigned to an attorney!” despite the fact that most cases were handled by non-attorney case managers. In its decision to disbar Guirard and his partner, the Louisiana Supreme Court noted that advertisements like the “E Guarantee” were a “misrepresentation by omission to the clients.” 242
You are part of the marketing staff at a settlement mill. Management has asked you to come up with a marketing campaign that will avoid the trouble that E. Eric Guirard and Associates faced. How would you proceed? Recall the relevant rules around advertising, discussed supra at Section A.
References: Rules 7.1, 7.2.
G.Third-Party Litigation Finance
A final, related set of questions involves whether attorneys or third parties should be able to purchase interests in litigation and profit therefrom. Currently, there is a rise in third-party litigation finance, sometimes called “alternative litigation finance,” or ALF. These funding arrangements typically take one of three forms:
8531)Consumer legal funding, which involves nonrecourse loans to individual low- and middle-income personal injury plaintiffs, typically for living expenses (such as housing and medical care) to tide the plaintiff over, while he or she is awaiting case resolution. This funding is typically for relatively small sums, often a few thousand dollars. Because these funding arrangements are “nonrecourse,” if the claim is not successful, the plaintiff need not pay the funder back. However, financing charges are high, often exceeding 100 percent a year.243
2)Investments in commercial lawsuits (business versus business), such as loans typically provided by Juridica Investments and Burford Capital. These investments tend to be for large sums (sometimes, millions of dollars) and can benefit either plaintiffs or defendants.244
3)Lawyer lending, which involves loans to plaintiffs’ personal injury lawyers and law firms to finance case preparation—that is, to cover the costs and expenses of litigation, including travel, medical exams, filing fees, and payments to expert witnesses, investigators, and consultants. Some lawyer lenders offer nonrecourse loans, while the majority offer recourse loans, such that the funder has to be paid back (plus a financing charge of roughly 15 to 20 percent), regardless of whether the lawyer’s case or cases ultimately succeed.
These types of funding arrangements hold some obvious advantages. By carefully evaluating claims and diversifying risks, investors can support litigation that is likely to prove meritorious and socially valuable but would otherwise exceed the capacity of parties or individual lawyers to subsidize. Third-party financing can also level the playing field and promote accuracy in adjudication by ensuring that plaintiffs are not systematically outspent—and thus, outgunned—by better-heeled foes.245 Finally, consumer legal funding, in particular, gives individual plaintiffs the ability to withstand efforts by insurers and defendants to prolong cases, which might otherwise force impoverished plaintiffs to settle because of financial hardship and economic necessity.
Critics of third-party financing, on the other hand, worry that it will stir up frivolous and otherwise non-meritorious litigation and permit “legalized loan sharking,” as some funders charge clients seemingly exorbitant rates even when the funder appears to assume little risk.246 Critics also charge that these mechanisms constitute improper fee-854splitting (under Rule 5.4) and run afoul of the ancient doctrines of champerty and maintenance. Others worry that these funding arrangements might cause lawyers to compromise their ethical duties to clients, as lawyers may be tempted to prioritize lenders’ interests over the interests of clients, inadvertently waive the attorney-client privilege, or breach their duty of confidentiality, under Rule 1.6.247 Finally, some note that, apart from such ethical arguments, these arrangements are problematic because they just seem improper. There is, opponents insist, “something conceptually wrong” or “distasteful” with third-party financing” because it transforms “a nonmarket good, namely civil justice, into something that can be bought and sold like anything else.”248
1.The market for consumer legal funding has proliferated, in part, because Rule 1.8(e) prohibits lawyers from making or guaranteeing loans to clients for medical and living expenses while the client is awaiting case resolution. Under its terms:
(e)A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1)a lawyer may advance court costs and expenses of litigations, the repayment of which may be contingent on the outcome of the matter; and
(2)a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Comment 10 explains that lawyers may not make or guarantee loans covering clients’ living expenses “because to do so would encourage clients to pursue law suits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.” A further rationale is that, if such funding were permitted, attorneys would compete for clients based on the generosity of their assistance rather than on the quality of their representation.249 Additionally, some courts have suggested that the restriction is necessary to “prevent the attorney from acquiring a financial interest in the litigation which might interfere with his/her exercise of independent professional judgment, especially when it comes to deciding whether to settle the case.”250
On the other hand, critics of the bar’s position insist that humanitarian assistance is necessary to prevent inadequate compensation and creates no greater danger of conflict of interest than contingent fees.251 Based on such 855considerations, a minority of states allow lawyers to advance or guarantee loans for living expenses under certain circumstances.
An example of this permissive approach is Louisiana State Bar Ass’n v. Edwins, 329 So. 2d 437 (La. 1976). In Edwins, a lawyer was disciplined for, among other things, providing funds to cover the cost of his client’s surgery for a non-accident related illness. The Louisiana Supreme Court ultimately ruled: “[W]e are unwilling to hold that the spirit or the intent of the disciplinary rule is violated by the advance or guarantee by a lawyer to a client (who has already retained him) of minimal living expenses, of minor sums necessary to prevent foreclosures, or of necessary medical treatment.” The court continued:
If an impoverished person is unable to secure subsistence from some source during disability, he may be deprived of the only effective means by which he can wait out the necessary delays that result from litigation to enforce his cause of action. He may, for reasons of economic necessity and physical need, be forced to settle his claim for an inadequate amount.
We do not believe any bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim. Cf., Canon 2: ‘A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.’ Nor do we see how a lawyer’s guarantee of necessary medical treatment for his client, even for a non-litigation related illness, can be regarded as unethical, if the lawyer for reasons of humanity can afford to do so. . . .
In our opinion, the better view . . . [is] that the advancement of living expenses [does] not constitute a violation of professional responsibility, so long as: (a) the advances [are] not promised as an inducement to obtain professional employment, nor made until after the employment relationship was commenced; (b) the advances [are] reasonably necessary under the facts; (c) the client remain[s] liable for repayment of all funds, whatever the outcome of the litigation; and (d) the attorney [does] not encourage public knowledge of this practice as an inducement to secure representation of others.
Do you agree with Rule 1.8(e) or are you swayed by the Edwins decision? Is the status quo, where third-party providers lend money to individual clients, often for very high rates, preferable?
2.In some ALF funding arrangements (particularly those involving commercial players), the client cedes some decisionmaking authority to the funder, but the funder owes no fiduciary obligation to the client. Some scholars worry that this may encourage conflicts of interest. For example, “funders can push for monetary remedies over non-monetary ones such as 856injunctive relief, declaratory relief, a public apology, a change of an internal policy, or a change in the law.”252 In addition, “funders can profit not only from the litigation, but also from their access to the plaintiff’s sensitive information. Absent contractual protection, nothing stops the funder from selling the information or otherwise profiting from it to the plaintiff’s disadvantage.”253 Concerned about these scenarios, some have proposed model litigation finance contracts that impose fiduciary obligations on funders.254 Should such obligations be imposed, either by courts or by contract?
3.The rise of third-party litigation finance has ignited a fierce debate on whether the ancient common law doctrines of maintenance (defined as “helping another prosecute a suit”) and champerty (defined as “maintaining a suit in return for a financial interest in the outcome”) still apply at all and, if they do, whether they restrict third-party investment in litigation. 255
Several states have reconsidered restrictions on maintenance and champerty in light of modern litigation finance. Results have been mixed. Some have voided litigation funding agreements. See, e.g., Johnson v. Wright, 682 N.W.2d 671 (Minn. App. 2004). By contrast, others have simply abandoned the ancient common law doctrines. In Saladini v. Righellis, 687 N.E.2d 1224 (Mass. 1997), for example, the Massachusetts Supreme Court held that the common law doctrines of champerty and maintenance would no longer be recognized. In so holding, the court observed that the doctrines had a “checkered history” and that judges had “long abandoned the view that litigation is suspect, and ha[d] recognized that agreements to purchase an interest in an action may actually foster resolution of a dispute.” 687 N.E. at 1225–27. Similarly, in 2000, the South Carolina Supreme Court announced: “[W]e abolish champerty as a defense. We are convinced that other well-developed principles of law can more effectively accomplish the goals of preventing speculation in groundless lawsuits and the filing of frivolous suits than dated notions of champerty.” Osprey, Inc. v. Cabana Ltd. Partnership, 532 S.E.2d 269, 277 (S.C. 2000). Other states, including Florida and Mississippi, ostensibly preserve the doctrines, but have refused to find that litigation funding agreements fall within their ambit.256
4.Usury laws, which exist in most but not all states, might serve as an additional impediment to third-party litigation finance. Generally, the elements of usury are: (1) an agreement to lend money; (2) a non-contingent obligation to repay the lender; and (3) greater compensation for the loan than is authorized under the applicable statute. Applying those elements, litigation loans to plaintiffs are typically thought to flunk the second 857requirement: These loans are typically contingent on an event, namely prevailing in the lawsuit. Accordingly, most courts have concluded that the transactions are not limited by states’ usury statutes.257
5.Another question, particularly with lawyer lending, is: Who ought to pay? When a lawyer uses a litigation funder to cover case costs and expenses and is obligated to repay the funds advanced plus a fee, the lawyer must either (1) pay the funding company a fee out of his own contingency fee, or (2) have the client pay the funding company a fee out of her recovery as an additional “expense” of litigation, per Rule 1.8(e).
An important question, though, is whether the second option is ethical. Put differently, if the lawyer incurs financing charges while advancing reasonable litigation “expenses,” are those financing charges also reasonable litigation “expenses” that can be subtracted from a client’s recovery? So far, every state ethics committee to address the issue has said yes; interest deductions are permissible. And, many lenders make the ability to pass—or “deduct”—interest a prime selling point. One prominent funder, Advocate Capital, for example, has boasted on its website that it provides “Case Expense Financing at a Net Cost of Less Than 1%*.” The asterisk notes that 1% is what a law firm would itself pay after transferring “borrowing costs” along to firm clients. Amicus Capital Services similarly has advertised: “Financing under the Amicus program is INTEREST FREE to participating law firms when a case is won. As provided in many state ethics codes, interest expense incurred under the Amicus program is reimbursable to the firm as a cost of litigation.”
Notwithstanding state ethics committees’ unanimous acquiescence, it is not clear that the deduction of interest ought to be permitted as a reasonable cost or expense of litigation. What might be some problems? As you answer, consider restrictions on proper costs and expenses of litigation, discussed supra at Section E.258
6.What, if any, information should recipients of litigation funding have to disclose to their adversaries? In 2018, Wisconsin became the first state to require that litigants disclose all litigation funding arrangements in civil cases.259 The measure was backed by the U.S. Chamber of Commerce which greeted the bill’s passage by stating: “Wisconsin’s law brings litigation funding out of the shadows, so that funders in the state can’t anonymously ‘pull the strings’ of a lawsuit without other parties’ knowledge.”260 How does the backing of a deep-pocketed financier change a litigant’s incentives? Should a litigant’s adversary be entitled to this information?
8587.Some have started to fund lawsuits, not to make a buck, but, rather, to make a point. Most notably, in 2016, Terry Bollea, the former professional wrestler known as Hulk Hogan, won a $140 million judgment against Gawker, after Gawker published a surreptitiously-recorded video of Mr. Bollea involved in a sexual encounter with the wife of a former friend. The case made news once it came to light that Silicon Valley billionaire Peter Thiel had secretly financed the lawsuit. Thiel said he funded the case because Gawker had published an article in 2007 headlined “Peter Thiel is totally gay, people.” The Bollea lawsuit, Thiel explained, was “specific deterrence” against publication of articles that Thiel regarded as “painful and paralyzing” to people whom Gawker had “targeted.261 Are you comfortable with this new breed of litigation finance? Are there risks?
You represent an individual physician who is being sued for medical malpractice. The plaintiff convincingly alleges that she was seriously injured in the course of a botched surgery. The physician’s hospital has also been sued under the theory of respondeat superior.
Because liability is so clear and the plaintiff’s injuries are so serious, you are inclined to offer a reasonable and prompt settlement. The hospital’s defense lawyer comes to you, however, and he notes that the plaintiff, a single mother with two small children, is under serious financial strain. She was just an hourly employee at a nearby grocery store, and now, owing to her injuries, she cannot work, and her employment is soon to be terminated. On top of that, she has not been paying her mortgage, so her home is likely to be foreclosed upon within the next year. He suggests you wait the plaintiff out, because, as months pass, her rapidly-deteriorating financial condition will force her to accept a low-ball settlement offer to avoid the home foreclosure.
What do you do? Is playing this waiting game ethical? Even if you find this strategy distasteful, must you present the option to your physician client?
References: Rules 1.2, 1.4, 2.1, 3.2, 8.4.
You represent a woman who is asserting claims against a municipal housing authority that also provides her Section 8 housing assistance. The client is indigent, disabled, and unemployed. An infant lives with her. The client has been unable to pay her water bill for over a year, and the provider has turned the service off. You have interceded, at the client’s request, with the water company, but you have been unsuccessful. The water company is demanding $1,500 to restore the 859service. You would like to pay the water bill, and you feel you have a moral obligation to assist your client and her infant, who are in urgent financial need. What can you do?262
Reference: Rule 1.8(e).
1For more on credence goods, see Nora Freeman Engstrom, Attorney Advertising and the Contingency Fee Cost Paradox, 65 Stan. L. Rev. 633, 673 (2013).
2Barbara A. Curran, The Legal Needs of the Public: The Final Report of a National Survey 190 (1977).
3For a discussion of formidable informational barriers, see Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 859–62 (2011).
4Yankelovich Partners for Martindale-Hubbell, Consumers Attitudes Toward Choosing Legal Counsel (2000).
5AVVO.com, AVVO Survey Shows Americans Lack Confidence and Information When It Comes to Choosing the Right Lawyer, June 5, 2007.
6George A. Akerlof, The Market for “Lemons”: Quality Uncertainty and the Market Mechanism, 84 Q. J. Econ. 488 (1970).
7Conn. Rules of Prof’l Conduct, R. 7.2.
8William Forsyth, The History of Lawyers 172 (1875).
9Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (1980); Fed. Trade Comm’n, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising 21–24 (1984).
10Canons of Prof’l Ethics, Canon 27 (1908).
11Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 41 (1976) (quoting George Sharswood).
12Model Code of Prof’l Responsibility DR 2–101(A) (1969); see also id. DR 2–101(B) (laying out additional restrictions).
13James Willard Hurst, The Growth of American Law: The Law Makers 331 (1950.
14In re Maltby, 202 P.2d 902 (Ariz. 1949) (matchbooks); ABA Formal Op. 309 (1963) (Christmas cards); In re Duffy, 19 A.D.2d 177 (N.Y. App. Div. 1963) (neon sign); Henry S. Drinker, Legal Ethics 289, App. A No. 132 (1953) (size of sign); Belli v. State Bar, 519 P.2d 575 (Cal. 1974) (Scotch); ABA Informal Op. C–747 (1964) (jewelry); ABA Formal Op. 284 (1953) (phone book). But see ABA Informal Op. 1222 (jewelry with ABA insignia permissible under DR 2–101(A)).
15Drinker, supra note 14, at 210–12.
16For discussion, see Engstrom, supra note 1, at 641–51.
17Engstrom, supra note 1, at 650.
18The case involved a successful challenge to Missouri regulations that narrowly limited advertising to certain specified categories of information and designated areas of practice.
19Zauderer involved an advertisement featuring a drawing of the Dalkon Shield contraceptive device, accompanied by the question, “DID YOU USE THIS IUD?” The ad stated that the device was alleged to cause certain serious complications, that the law firm was representing women with claims against the manufacturer, and that “[t]he cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients.” The Court held that the state bar could impose discipline for only the last sentence of the advertisement, which did not distinguish between fees and costs and therefore might mislead lay persons to believe they had no liability in a losing cause. 471 U.S. at 652–53. The Court also found reasonable the Ohio Supreme Court’s suggestion that attorneys advertising their availability on a contingency fee basis must also disclose their rates. Id. at 653 n.15.
20The mailing at issue was directed to individuals subject to mortgage foreclosures.
21The attorney’s letterhead stated that he was a “certified civil trial specialist by the National Board of Trial Advocacy [NBTA].” The lower court made no finding of actual deception, and because the NBTA standards were verifiable and rigorous, the Supreme Court did not find the advertisement inherently misleading.
22William Hornsby, Clashes of Class and Cash: Battles from the 150 Years War to Govern Client Development, 37 Ariz. St. L.J. 255, 271 (2005).
23Archer W. Huneycutt & Elizabeth A. Wibker, Consumers’ Perceptions of Selected Issues Relating to Advertising by Lawyers, 7 J. Prof. Servs. Mktg. 119, 120 (1991). Then Chief Justice Burger had difficulty finding appropriate language for lawyers who advertised. “Perhaps huckster is not strong enough a word; shyster is more appropriate, but I find on consulting the dictionary that even ‘shyster’ is not strong enough. I will settle for ‘huckster-shyster’ advertising.” Hornsby, supra note 22, at 260 (quoting Warren Burger).
24Milo Geyelin, Debate Intensifies over State Regulations That Restrict TV Advertising by Lawyers, Wall St. J., Aug. 31, 1992, at B1, B4; Diane B. MacDonald & Mary Anne Raymond, Attorney Advertising: Do Attorneys Know Their Clients?, 7 J. Prof. Servs. Mktg. 99 (1991). See generally Am. Bar Ass’n, Lawyer Advertising at the Crossroads (1995).
25Leigh Jones, A Tough Sell: Lawyer Ads Show Glacial Evolution, Nat’l L.J., June 4, 2007, at A1. For figures on lawyer advertising, see Engstrom, supra note 1, at 695.
26For a detailed discussion, see generally Engstrom, supra note 1 and infra notes 38–39 and accompanying text.
27W. Ward Reynoldson, The Case Against Lawyer Advertising, 75 ABA J., Jan. 1989, at 60; see Jim Rossi & Mollie Weighner, An Empirical Examination of the Iowa Bar’s Approach to Regulating Lawyer Advertising, 77 Iowa L. Rev. 179, 223, 253–55 (1991); Ronald D. Rotunda, Professionalism, Legal Advertising and Free Speech in the Wake of Florida Bar v. Went For It, Inc., 49 Ark. L. Rev. 703 (1997) (noting methodological problems that afflict certain bar studies).
28Geyelin, supra note 24, at B1.
29See Mary Hladky, High Court Case to Test Limits on Lawyer Ads, Legal Times, Jan. 9, 1995, at 18.
30Huneycutt & Wibker, supra note 23, at 124; Am. Bar Ass’n Comm’n on Advert., Report on the Survey on the Image of Lawyers in Advertising (1990).
31Richard J. Cebula, Does Lawyer Advertising Adversely Influence the Image of Lawyers in the United States?: An Alternative Perspective and New Empirical Evidence, 27 J. Legal Stud. 503, 505, 514 (1998).
32Am. Bar Ass’n, Lawyer Advertising at the Crossroads, supra note 24, at 3.
33Id.
34See Jonathan M. Korn, Notice to the Bar (May 4, 2016), available at https://www.njcourts.gov/notices/2016/n160518a.pdf; Super Lawyers Selection Process, https://www.superlawyers.com/about/selection_process.html. Cf. Marshall Allen, I’m a Journalist. Apparently, I’m Also One of America’s “Top Doctors”, ProPublica, Feb. 28, 2019 (reporting the journalist’s own experience; he does not have a medical degree but was, nevertheless, given a “Top Doctor” award, supposedly by his peers and patients).
35N.J. Comm. on Attorney Advertising Op. 39 (2006). This opinion was ultimately abrogated by the New Jersey Supreme Court. Judith Nallin, In re Opinion 39 of the Committee on Attorney Advertising, N.J. L.J. Dec. 18, 2008.
36See, e.g., Mich. Bar Comm. Prof’l & Judicial Ethics, Informal Op. RI–341 (2007). See also William W. Yavinsky, A Comparative Look at Comparative Attorney Advertising: Why Efforts to Prohibit Evaluative Rankings Spark Debate from Buffalo to Buenos Aires, 20 Geo. J. Legal Ethics 969 (2007).
37Conn. Rules of Prof’l Conduct, R. 7.2.
38Engstrom, supra note 1, at 638–39.
39Id. at 685–86.
40Fred C. Zacharias, What Lawyers Do When Nobody’s Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 Iowa L. Rev. 971, 992 (2002).
41Margaret Raymond, Inside, Outside: Cross-Border Enforcement of Attorney Advertising Restrictions, 43 Akron L. Rev. 801, 815–16 (2010); Zacharias, supra note 40, at 978–88.
42Engstrom, supra note 1, at 684.
43Nev. Rules of Prof’l Conduct R. 7.1 (2011).
44Richard B. Schmitt, Lowering the Bar: Lawyers Flood Web, But Many Ads Fail to Tell Whole Truth, Wall St. J., Jan 15, 2001, at A1; Melissa Blades & Sarah Vermylen, Virtual Ethics for a New Age: The Internet and the Ethical Lawyer, 17 Geo. J. Legal Ethics 637 (2004).
45Skylar Reese Croy, “Leave Me My Name”: Why Competitive Keyword Advertising Is an Ethical Landmine for Attorneys, 103 Marq. L. Rev. 627, 631 (2019).
46For a discussion of states’ response, see id. at 633–34.
47Steven K. Berenson, Is It Time for Lawyer Profiles?, 70 Fordham L. Rev. 645, 651–57, 680 (2001); Deborah L. Rhode, In the Interests of Justice 163–64 (2000).
48Engstrom, supra note 3, at 812.
49Benjamin H. Barton & Deborah L. Rhode, Access to Justice and Routine Legal Services: New Technologies Meet Bar Regulators, 70 Hastings L.J. 955, 962, 964–78 (2019) (discussing Avvo); Deborah L. Rhode, Access to Justice 99 (2004).
50Engstrom, supra note 3, at 861.
51Renee Knake, The Commercialization of Legal Ethics, 29 Geo. J. Legal Ethics 715, 722 (2016).
52Michael Luca & Georgios Zervas, Fake It Till You Make It: Reputation, Competition, and Yelp Review Fraud, 62 Mgmt. Sci. 3412, 3224–25 (2016).
53Melissa Maleske, Why a Yelp for Lawyers Remains a Tough Sell, Law360 (Sept. 28, 2016), https://www.law360.com/articles/844545/why-a-yelp-for-lawyers-remains-a-tough-sell.
54N.Y. State Bar Ass’n on Prof’l Ethics, Op. 1052 (2015).
55For bar concerns about ratings, see Stephanie Francis Ward, Grade Anxiety, ABA J., Feb. 2010, at 49. For a detailed proposal for how state bars could create a database for the selection of personal injury attorneys, based on objective, verifiable information, see generally Engstrom, supra note 3.
56Brae Canlen, Injured? Call Now, Cal. Law., Jan. 1995, at 51.
57See Louise L. Hill, Lawyer Advertising 93, 99 (1993); Alexander v. Cahill, 634 F. Supp. 2d 239 (N.D.N.Y. 2007) (heavy hitter); Advertising May Tout ‘Super Lawyer’ Listing and Other Ratings that Meet Certain Criteria, 23 ABA/BNA Lawyers Manual Prof’l Conduct 407, 408 (2007) (discussing various opinions on best and super lawyer designations); Jill Schachner Chanen, Watch What You Say, ABA J., Oct. 2005, at 59–60 (discussing web address).
58Crowe v. Tull, 126 P.3d 196 (Colo. 2006).
59Kentucky Bar Ass’n v. Gangwish, 630 S.W.2d 66 (Ky. 1982) (discount).
60Geyelin, supra note 24, at B1.
61Harrell v. Fla. Bar, 2008 WL 596086 (M.D. Fla. 2008).
62In re Keller, 792 N.E.2d 865 (Ind. 2003).
63Jones, supra note 25; Hornsby, supra note 22, at 265. The lawyer herself was the partly undressed woman in the billboard; in the wake of the notoriety it gave her, she also posed in Playboy in a profile titled “Lawyer of Love.”
64Alexander v. Cahill, 2007 WL 1202402 (N.D.N.Y. 2007); Nathan Koppell, Objection: Funny Legal Ads Draw Censure, Wall St. J., Feb. 7, 2008, at A1.
65Susan Saulny, Lawyers’ Ads Seeking Clients in Ferry Crash, N.Y. Times, Nov. 4, 2003, at A1; Hornsby, supra note 22, at 265.
66Rule 7.3, cmt. 1.
67 Conn. Rules of Prof’l Conduct, R. 7.3.
68See Charles W. Wolfram, Modern Legal Ethics 786 (1986) (discussing, for example, Abraham Lincoln and Dred Scott); Deborah L. Rhode, Solicitation, 36 J. Legal Educ. 317, 325–29 (1986) (discussing Brown v. Board of Education).
16. . . In recognizing the importance of the State’s interest in regulating solicitation of paying clients by lawyers, we are not unmindful of the problem of the related practice, described in Railroad Trainmen, of the solicitation of releases of liability by claims agents or adjusters of prospective defendants or their insurers. Such solicitations frequently occur prior to the employment of counsel by the injured person and during circumstances posing many of the dangers of overreaching we address in this case. Where lay agents or adjusters are involved, these practices for the most part fall outside the scope of regulation by the organized Bar, but releases of settlements so obtained are viewed critically by the courts.
19A lawyer who engages in personal solicitation of clients may be inclined to subordinate the best interests of the client to his own pecuniary interests. Even if unintentionally, the lawyer’s ability to evaluate the legal merit of his client’s claims may falter when the conclusion will affect the lawyer’s income. A valid claim might be settled too quickly, or a claim with little merit pursued beyond the point of reason. These lapses of judgment can occur in any legal representation, but we cannot say that the pecuniary motivation of the lawyer who solicits a particular representation does not create special problems of conflict of interest.
24Appellant informs us that the ACLU policy then in effect provided that cooperating lawyers associated with the ACLU or with an affiliate could not receive an award of counsel fees for services rendered in an ACLU-sponsored litigation. . . . Apparently it was feared that allowing acceptance of such fees might lead to selection of clients and cases for pecuniary reasons. This policy was changed in 1977 to permit local experimentation with the sharing of court-awarded fees between state affiliates and cooperating attorneys. The South Carolina chapter has not exercised that option. We express no opinion whether our analysis in this case would be different had the latter policy been in effect during the period in question.
1The Court carefully reserves judgment on factual circumstances in any way distinguishable from those presented here. For instance, the Court suggests that different considerations would arise if Primus herself had received any benefit from the solicitation, or if her income depended in any way on the outcome of the litigation. Likewise, the Court emphasizes that the lawyers conducting the litigation would have taken no share had attorney’s fees been awarded by the court. Finally, the Court points out that Williams had not “communicated unambiguously a decision against litigation,” that the solicitation was not effected in person, and that legal services were offered free of charge. All these reservations seem to imply that a State might be able to raise an absolute prohibition against any of these factual variations, even “[i]n the context of political expression and association.” On the other hand, in Ohralik, the Court appears to give a broader reading to today’s holding. “We hold today in Primus that a lawyer who engages in solicitation as a form of protected political association generally may not be disciplined without proof of actual wrongdoing that the State constitutionally may proscribe.”
69Fed. Trade Comm’n, supra note 9, at 151.
70Rhode, Solicitation, supra note 68, at 317–21.
71H. Laurence Ross, Settled Out of Court 67, 70 (1970).
72In re Cohn, 139 N.E. 2d 301, 305–06 (Ill. 1956) (Bristow, J., concurring); see also Nora Freeman Engstrom, Legal Ethics: The Plaintiffs’ Lawyer (unpublished manuscript, 2020).
73Nora Freeman Engstrom, Run-of-the-Mill Justice, 22 Geo. J. Legal Ethics 1485, 1540–42 (2009) (collecting evidence).
7449 U.S.C. § 1136(g)(2).
75Eli P. Bernzweig, By Accident Not Design: The Case for Comprehensive Injury Reparations 83 (1980) (quoting Melvin Belli).
76Ins. Research Council, Paying for Auto Injuries: A Consumer Panel Survey of Auto Accident Victims 38 (2004).
77Anita Bernstein, Sanctioning the Ambulance Chaser, 41 Loy. L.A. L. Rev. 1545 (2008).
78Cotton Delo, Does Facebook Know You’re Pregnant?, AdAge (Sep. 10, 2012), https://adage.com/article/digital/facebook-pregnant/237073.
79Maura Dolan, Fresh on the Heels of Trouble, L.A. Times, Oct. 13, 1993, at A1.
80Mark Hansen, Solicitation or Sympathy?, A.B.A. J., Sept. 1991, at 34.
81Jack Healy, They Survived a Massacre. Then the Lawyers Started Calling, N.Y. Times, May 1, 2018, at A13.
82Cal. Bus. & Prof. Code §§ 6125–6126. Penalties are even steeper for those who have been suspended from membership.
83For discussion of the difficulty, see Catherine J. Lanctot, Does Legal Zoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law, 20 Temple Pol. & Civ. Rts. L. Rev. 255, 262 (2011).
84Am. Bar Ass’n, Survey of Unlicensed Practice of Law Committees 1 (2012); Deborah L. Rhode & Lucy Buford Ricca, Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev. 2587, 2588 (2014).
85Am. Bar Ass’n, Task Force on the Model Definition of the Practice of Law Recommendation, Report to the House of Delegates (2003).
86Joint Letter to the Task Force on the Model Definition.
87See Am. Bar Ass’n, State Definitions of the Practice of Law, available at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/model-def_migrated/model_def_statutes.pdf (compiling relevant authority).
88Ronald D. Rotunda, Professional Responsibility 199 (8th ed. 2008).
89 Deborah L. Rhode, The Trouble with Lawyers 42 (2015).
90Id. at 42–43.
91Id. at 43.
92Nat’l Ctr. for State Courts, The Landscape of Civil Litigation in State Courts 31 (2015).
93Marsha M. Mansfield, Litigants Without Lawyers: Measuring Success in Family Court, 67 Hastings L.J. 1389, 1391 (2016).
94Judith Resnik, Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham L. Rev. 1899, 1916 (2017).
95In re Amendment to Rules Regulating the Florida Bar, 510 So. 2d 596 (Fla. 1987).
96Cal. Bus. & Prof. Code § 6400. California is considering whether to go much further—to allow nonlawyers to provide a broad range of legal advice and services. Debra Cassens Weiss, Nonlawyers Could Offer Legal Advice and Partly Own Law Firms Under These California Proposals, ABA J., July 15, 2019.
97Aebra Coe, Calif. Bar’s Nonlawyer Reforms to Get Public Airing, Law360 (July 11, 2019).
98Ariz. Code of Judicial Admin. § 7–208.
99Unauthorized Practice of Law Comm. v. Parsons Tech., 1999 WL 47235 (N.D. Tex. 1999), vacated and remanded, 179 F.3d 956 (5th Cir. 1999).
100Judicial Business 2018 Table T-13: Civil Pro Se and Non-Pro Se Filings, by District, During the 12-month Period Ending September 30, 2018, U.S. Courts, https://www.uscourts.gov/sites/default/files/data_tables/jb_c13_0930.2018.pdf.
101Note, Prison “No-Assistance” Regulations and the Jailhouse Lawyer, 1968 Duke L.J. 343–61.
102Evan R. Seamone, Fahrenheit 451 on Cell Block D: A Bar Examination to Safeguard America’s Jailhouse Lawyers from the Post-Lewis Blaze Consuming their Law Libraries, 24 Yale L. & Pol’y Rev. 91, 125 (2006).
103In re Morales, 151 A.3d 333, 340 (Vt. 2016).
104Adam Liptak, Jailhouse Lawyer Propels a Case to the Supreme Court, N.Y. Times, Aug. 6, 2019, at A9.
105Rhode, supra note 89, at 42–43
106William T. Robinson, Letter to the Editor, Legal Help for the Poor: The View from the A.B.A., N.Y. Times, Aug. 30, 2011, at A26.
107For an argument in favor of licensing immigration service providers, see Emily A. Unger, Solving Immigration Consultant Fraud Through Expanded Federal Accreditation, 29 Law & Ineq. 425 (2011).
108Nationally, about 80 percent of real estate closings are conducted by nonlawyers, while about ten states require lawyers’ assistance. Adam Liptak, U.S. Opposes Proposal to Limit Who May Give Legal Advice, N.Y. Times, Feb. 3, 2003, at A11.
109N.Y. Co. Lawyers’ Ass’n v. Dacey, 28 A.D.2d 161, 173 (N.Y. App. Div. 1967) (Stevens, J., dissenting), rev’d on the dissenting opinion in the Appellate Division, 234 N.E.2d 459 (N.Y. 1967).
110 Benjamin H. Barton & Stephanos Bibas, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law 125 (2017).
111Benjamin H. Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession 93, 210–12 (2015); Our Story, LegalZoom, https://www.legalzoom.com/about-us (reporting that, as of 2015, the company had “reach[ed]” 3.6 million “customers”).
112See, e.g., Jason Tashea, Nonlawyers at LegalZoom Performed Legal Work on Trademark Applications, UPL Suit Alleges, ABA J., Dec. 20, 2017 (reporting on a suit recently filed in California); Janson v. LegalZoom.com, Inc., 802 F. Supp. 2d 1053 (W.D. Mo. 2011) (concluding that LegalZoom’s document preparation service constituted UPL under Missouri law).
113 The Model for Law Firms Looking to Improve Client Relations, Bloomberg BNA, Feb. 3, 2016.
114Barton, supra note 111, at 212–13.
115Bill Ibelle, Allstate Tells Car Crash Victims, ‘You Don’t Need a Lawyer,’ Law. Wkly., Mar. 24, 1997, B1, B2 (noting study finding that average settlement for claimants without lawyers was $3,262, compared to $11,939 for claimants with legal representation).
116In re Reynoso, 477 F.3d 1117 (9th Cir. 2007).
117We are grateful to Samuel T. Ward-Packard for contributing this Problem.
118DoNotPay, www.donotpay.com (last visited Nov. 18, 2019).
119Teke Wiggin, Lawyer Bots Take the Hassle out of Fighting Parking Tickets and Property Taxes—and Could Cost Local Governments Real Revenue, VOX (Apr. 5, 2018), https://www.vox.com/2018/4/5/17119956/parking-ticket-property-tax-revenue.
120Am. Bar Ass’n Comm’n on Multidisciplinary Practice, Report 10–12 (2002).
121391 N.W.2d at 163 (quotation marks and citations omitted).
122Cal. Rules of Court, Rule 9.43.
123Id. 9.45–9.48.
124Id. 9.47(d)(2), (5); id. 9.48(d)(2), (5).
125Sheryl B. Shapiro, American Bar Association’s Response to Unauthorized Practice Problems Following Hurricane Katrina: Optimal or Merely Adequate?, 20 Geo. J. Legal Ethics 905 (2007).
126Joan C. Rogers, Ethics 20/20 Commission Gets Earful About Its Draft Proposals on Foreign Lawyers, MJP, 27 ABA/BNA Lawyer’s Manual Prof’l Conduct 669, 671 (2011) (quoting James Coyle).
127Id. at 671 (paraphrasing Carolyn Lamm).
128Anthony E. Davis, Multijurisdictional Practice by Transactional Lawyers—Why the Sky Really Is Falling, 11 Prof. Lawyer 1 (2000); Martha Neil, Easing Up, ABA J., Feb. 2002, at 47, 49.
129See Stephen Gillers, Protecting Their Own, Am. Law., Nov. 1998, at 118; Geoffrey C. Hazard Jr., New Shape of Lawyering, Nat’l. L.J., July 23, 2001, at A21.
130Laurel S. Terry et al., Transnational Legal Practice, 43 Int’l Law. 943, 943 (2009).
131Ben Seal, Grand Openings: Where U.S. Law Firms Are Setting Up Abroad, Am. Law., Sep. 24, 2019.
132Rick Mitchell, Not Much Progress Expected in Global Talks To Lower Barrier to Trade in Legal Services, 27 ABA/BNA Lawyers’ Manual Prof’l Conduct 267 (2011); IBA Global Regulation and Trade in Legal Services Report 2014, https://perma.cc/75TN-Y8GU.
133Anna Stolley Persky, The New World, ABA J., Nov. 2011, at 34–35; Laurel S. Terry, Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context, 82 Fordham L. Rev. 2903 (2014). Some states permit temporary practice by foreign lawyers, some states allow foreign lawyers to be admitted pro hac vice, some states permit foreign in-house counsel, and some states permit foreign-educated applicants to sit for their bar exams, subject to restrictions. Some have a combination of the above. Laurel Terry, Jurisdictions with Rules Regarding Foreign Lawyer Practice, June 5, 2018, available at https://works.bepress.com/laurel_terry/80/ [hereinafter Terry Map].
134Terry Map, supra note 133.
135Eds.’ Note: We have made small changes to the statute to simplify it.
136Brian O’Neill, Outsourcing Legal Work to India: The Giant Sucking Sound from the East, Am. Jurist Online, Nov. 1, 2005.
137Heather Timmons, Due Diligence From Afar, N.Y. Times, Aug. 5, 2010, at B1.
138Id.; Cassandra Burke Robertson, A Collaborative Model of Offshore Legal Outsourcing, 43 Ariz. St. L.J. 125, 140 (2011).
139Raad Ahmed, Outsourcing Paralegal Work: Why Remote Paralegals Are the Future of Legal, Forbes, Oct. 18, 2019.
140ABA Formal Op. 08–451 (2008); San Diego County Bar Ass’n Ethics Op. 2007–1 (2007).
141Ass’n of the Bar of the City of New York Comm. on Prof’l & Judicial Ethics, Formal Op. 2006–3 (2006); Rule 1.1, cmt. 6.
142Rule 1.1, cmt. 6; see also Rule 1.4.
143See San Diego County Bar Ass’n Ethics Op. 2007–1 (2007); Alison M. Kadzik, The Current Trend to Outsource Legal Work Abroad and the Ethical Issues Related to Such Practices, 19 Geo. J. Legal Ethics 731, 735 (2006).
144N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2006–3 (2006).
145ABA Formal Op. 88–356 (1988).
146N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2006–3 (2006).
147This problem is based on facts reviewed in San Diego County Bar Ass’n Ethics Op. 2007–1 (2007).
148For discussion of these arguments, see Heather Miller, Don’t Just Check ‘Yes’ or ‘No’: The Need for Broader Consideration of Outside Investment in the Law, 2010 U. Ill. L. Rev. 311, 327 (2010).
149Am. Bar Ass’n Comm’n on Multidisciplinary Practice, Report to the House of Delegates (1999).
150MDP Rides Again, ABA J., Feb. 2000, at 96.
151N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 765 (2003).
152David Kaplan, Want to Invest in a Law Firm?, Nat’l L.J., Jan. 19, 1987, at 28.
153Rhode, supra note 89, at 101.
154Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services 254 (2008).
155Anthony J. Sebok, Selling Attorneys’ Fees, 2018 U. Ill. L. Rev. 1207, 1210 (2018).
156Gillian Hadfield, Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets, 60 Stan. L. Rev. 1689, 1726–27 (2008).
157John Eligon, Selling Pieces of Law Firms to Investors, N.Y. Times, Oct. 28, 2011, at B1 (quoting Andrew Perlman); see also Rule 5.4, cmt. 1 & 2 (explaining that the limitations seek to “protect the lawyer’s professional independence of judgment” and “express[ ] traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another”).
158Sebok, supra note 155, at 1210–12.
159Id. at 1212.
160Gillian K. Hadfield, The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law, 38 Int’l Rev. L. & Econ. 43 (2014).
161Id. at 44.
162Trio of Federal Suits Challenge Ethics Rule That Stops Private Equity Investment in Firms, 27 ABA/BNA Lawyers’ Manual Prof’l Conduct 382 (2011) (quoting Lawrence Fox).
163Kirk Swanson, Debate on Nonlawyer Investors in Law Firms Reaches U.S. Shores in ABA Ethics Program, 26 ABA/BNA Lawyers’ Manual Prof’l Conduct 355 (2010).
164Deborah L. Rhode & Alice Woolley, Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada, 80 Fordham Law Review 2761, 2783–84 (2012).
165Eligon, supra note 157, at B1.
166Am. Bar Ass’n Comm’n on Ethics 20/20, Discussion Paper on Alternatives to Law Practice Structures 8 (2011).
167Legal Services Consumer Panel, Consumer Impact Report 16 (2014), https://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/Consumer%20Impact%20Report%203.pdf.
168Nathan Koppel, Jacoby & Meyers Fights to Let Nonlawyers Buy In, Wall St. J., May 19, 2011, at B1.
169Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, Appellate Div. of the Supreme Court of N.Y., 852 F.3d 178, 191 (2d Cir. 2017).
170Sarah Downey, UK Legal Services Regulation “Steals a Competitive March” as Jacoby & Meyers Launches European Venture, Legal Bus., Aug. 9, 2013.
171For an argument that it’s the latter, see Emil Sadykhov, Note, Nonlawyer Equity Ownership of Law Practices: A Free Market Approach to Increasing Access to Courts, 55 Hous. L. Rev. 225, 240–44 (2017).
172Weiss, supra note 96.
173William D. Henderson, Legal Market Landscape Report Commissioned by the State Bar of California 25 (2018) (emphasizing that, under the State Bar Act, as policymakers consider whether to retain Rule 5.4(a), it should be judged by this standard).
174Marc Galanter, Anyone Can Fall Down a Manhole: The Contingency Fee and Its Discontents, 42 DePaul L. Rev. 457, 459 (1994); Gary A. Hengstler, Vox Populi: The Public Perception of Lawyers, ABA J., Sept. 1993, at 63; see also Am. Bar Ass’n Section on Litigation, Public Perception of Lawyers: Consumer Research Findings 14 (2002).
175Robert E. Megarry, Lawyer and Litigant in England 56–60 (1962); William J. Reader, Professional Men: The Rise of the Professional Classes in Nineteenth-Century England 36–37 (1966).
176Canons of Prof’l Ethics, Canons 27 & 28 (1908).
177Am. Bar Found., Annotated Code of Professional Responsibility 101–02, 104–05 (1979); see Engstrom, supra note 3, at 855 n.240 (collecting sources).
178Roy Ryden Anderson & Walter W. Steele, Jr., Ethics and the Law of Contract Juxtaposed: A Jaundiced View of Professional Responsibility Considerations in the Attorney-Client Relationship, 4 Geo. J. Legal Ethics 791, 815 (1991).
179Leonard E. Gross, The Public Hates Lawyers: Why Should We Care?, 29 Seton Hall L. Rev. 1405, 1445 (1999).
180William G. Ross, How Widespread is Unethical Billing?, L.J. Newsletters (Oct. 2007).
181Scott Turow, The Billable Hour Must Die, ABA J., Aug. 1, 2007, at 35.
182Update on Associate Hours Worked, NALP Bulletin (2016).
183Ross, supra note 180, at 3, 27; William H. Rehnquist, The Legal Profession Today, 62 Ind. L.J. 151, 153 (1987).
184Adam Liptak, Stop the Clock? Critics Call the Billable Hour a Legal Fiction, N.Y. Times, Oct. 29, 2002, at E7 (quoting memo). To qualify for a bonus, associates needed to bill 2,400 hours.
185Helen Coster, The Inflation Temptation, Am. Law., Oct. 2004, at 129.
186Susan Saab Fortney, Ethics Counsel’s Role in Combating the Ostrich Tendency, Prof. Law., 131, 135 (2002) (over half); Coster, supra note 185, at 129 (over a third). However, only 4 percent reported that inflating hours on time sheets was an accepted practice at their firm. Id. at 129.
187Steven J. Harper, The Tyranny of the Billable Hour, N.Y. Times, Mar. 29, 2013, at A23. Other DLA Piper correspondence included a colleague’s approach to the assignment as “churn that bill, baby!” Peter Lattman, Suit Offers a Peek at the Practice of Inflating Legal Bill, N.Y. Times, Mar. 25, 2013, at A1.
188Lisa G. Lerman, Blue-Chip Bilking: Regulating Billing Expense Fraud by Lawyers, 12 Geo. J. Legal Ethics 205, 278 (1999); see also Ross, supra note 180, at 199–219. Billing fraud involving the use of wire or mail (including to transmit the bill) is a felony under 18 U.S.C. §§ 1341, 1343, 1346.
189Turow, supra note 181, at 36.
190See Restatement (Third) of the Law Governing Lawyers § 49 (2000).
191Lerman, supra note 188, at 297–300.
192Am. Bar Ass’n Comm’n on Billable Hours 46–47 (2001).
193Debra Cassens Weiss, Suit by Fired Lawyer Claims Law Firm Encouraged Fraud with 3000 Hour Billable Quota, ABA J., Dec. 12, 2011 (describing claim by Richard Unitan).
194Am. Bar Ass’n Comm’n on Billable Hours, supra note 192, at 5–6; Susan Saab Fortney, I Don’t Have Time to Be Ethical: Addressing the Effects of Billable Hour Pressure, 39 Idaho L. Rev. 305 (2003). For an argument that fee-related abuses are attributable to “dishonest and incompetent lawyers who bill by the hour,” not the hourly billing system itself, see Douglas R. Richmond, In Defense of the Billable Hour, 24 Prof. Law. 1, 5 (2003).
195Danielle Braff, New Billable Hour Tracking Tools Reignite Fee Debate, ABA J., Mar. 1, 2018.
196Meg McEvoy, Analysis: Law Firms Respond to Demand for Alt. Fee Models, Bloomberg Law, June 17, 2019.
197Rule 1.5, cmt. 1.
198Nora Freeman Engstrom, Lawyer Lending: Costs and Consequences, 63 DePaul L. Rev. 377, 410 (2014).
199Nathan Koppel, Lawyer’s Charge Opens Window on Bill Padding, Wall St. J., Aug. 30, 2006, at B1.
200Ross, supra note 180.
201Larry Bodine, Forwarding Fees: Ethical?, Nat’l L.J., Feb. 5, 1979, at 1 (quoting Geoffrey Hazard).
202Engstrom, supra note 72, at 143.
203N.C. Admin. Code Rule 1.05.
204Stephen Daniels & Joanne Martin, The Texas Two-Step: Evidence on the Link Between Damage Caps and Access to the Civil Justice System, 55 DePaul L. Rev. 635, 639 n.22 (2005) (showing mean referral fee of 29.9 percent in Texas); Stephen J. Spurr, Referral Practices Among Lawyers: A Theoretical and Empirical Analysis, 13 Law & Soc. Inquiry 87, 101 (1988) (showing that a 50 percent fee to the referring lawyer is the most common arrangement in New York).
205Sara Parikh, How the Spider Catches the Fly: Referral Networks in the Plaintiff’s Personal Injury Bar, 51 N.Y. L. Sch. L. Rev. 243, 283 (2006).
206Id. at 277.
207Id. at 268.
208For a sophisticated critique of the status quo, see John Fabian Witt, Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System, 56 DePaul L. Rev. 261 (2007).
209Wy. Rules of Prof’l Conduct, R. 7.2.
210Charles Silver, Unloading the Lodestar: Toward a New Fee Award Procedure, 70 Tex. L. Rev. 865, 889 (1992).
211Engstrom, supra note 73, at 1525.
212Leonard Gross, Are Differences Among the Attorney Conflict of Interest Rules Consistent with Principles of Behavioral Economics?, 19 Geo. J. Legal Ethics 111, 140 (2006).
213For why, see Engstrom, supra note 1, at 413.
214Engstrom, supra note 199, at 411.
215Herbert M. Kritzer, Advocacy and Rhetoric vs. Scholarship and Evidence in the Debate Over Contingency Fees: A Reply to Professor Brickman, 82 Wash. U. L.Q. 477 (2004); but see Lester Brickman, Effective Hourly Rates of Contingency-Fee Lawyers: Competing Data and Non-Competitive Fees, 81 Wash. U. L.Q. 653 (2003).
216See generally Engstrom, supra note 3, at 865–83.
217See generally Lester Brickman, Michael Horowitz, & Jeffrey O’Connell, Rethinking Contingency Fees (1994).
218An example of the latter is California’s Medical Injury Compensation Reform Act (“MICRA”), which caps certain attorneys’ fees at 40 percent of the first $50,000 recovered, 33 percent of the next $50,000 recovered and so on, down to 15 percent. Cal. Bus & Prof. Code § 6146.
219Patricia Munch Danzon & Lee A. Lillard, Settlement Out of Court: The Disposition of Medical Malpractice Claims, 12 J. Legal Stud. 345, 363 (1983); see also Steven Garber et al., Do Noneconomic Damages Caps and Attorney Fee Limits Reduce Access to Justice for Victims of Medical Negligence?, 6 J. Empirical Legal Stud. 637 (2009); but cf. Casey L. Dwyer, An Empirical Examination of the Equal Protection Challenge to Contingency Fee Restrictions in Medical Malpractice Reform Statutes, 56 Duke L.J. 611, 629 (2006) (raising doubts about various studies).
220Michael McKee et al., Contingent Fees, Moral Hazard, and Attorney Rents: A Laboratory Experiment, 36 J. Legal Stud. 253 (2007).
221See American Tort Reform Association, Contingent Fee Reform, http://www.atra.org/issues/contingent-fee-reform.
222Mike Scarcella & Marcia Coyle, What New Supreme Court Cases Reveal About Big Law Billing Rates, Law360, Aug. 27, 2019.
223Am. Acad. of Matrimonial Lawyers, Bounds of Advocacy, 4.5, cmt. (2000).
224Pamela S. Karlan, Contingent Fees and Criminal Codes, 93 Colum. L. Rev. 595 (1993).
225Douglas R. Richmond, Turns of the Contingent Fee Key to the Courthouse Door, 65 Buff. L. Rev. 915, 917–19 (2017).
226Id. at 918.
227Id.
228For discussion, see Jim O. Stuckey, II, ‘Reverse Contingency Fees’: A Potentially Profitable and Professional Solution to the Billable Hour Trap, 16 Prof. Law. 25 (2005).
229Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
230Lester Brickman, Setting the Fee When the Client Discharges a Contingent Fee Attorney, 41 Emory L.J. 367, 368 (1992).
231F.B. MacKinnon, Contingent Fees for Legal Services: A Study of Professional Economics and Responsibility 69 (1964).
232See, e.g., Wash. Rules of Prof’l Conduct R. 1.8(e)(1).
233David Luban, Speculating on Justice: The Ethics and Jurisprudence of the Contingency Fee, in Legal Ethics and Legal Practice 109–12 (Stephen Parker & Charles Samford eds., 1995).
234Adam Liptak, Ethical Questions Raised on Legal Fee for Widow, N.Y. Times, Aug. 28, 2004, at A4.
235The discussion of settlement mills is drawn from Engstrom, Run-of-the-Mill Justice, supra note 73; Engstrom, supra note 3; Nora Freeman Engstrom, Legal Access and Attorney Advertising, 19 Am. U. J. Gender, Soc. Pol’y & L. 1083 (2011).
236Engstrom, Run-of-the-Mill Justice, supra note 73, at 1495.
237Id. at 1495–97.
238Id. at 1513.
239Id. at 1532–33.
240Id. at 1500–01. In fact, at one firm Engstrom chronicles, rather than meeting their lawyer in-person at the initial interview, clients were shown a video of their attorney explaining the case settlement process. Id. at 1505.
241Engstrom, Legal Access and Attorney Advertising, supra note 237, at 1086 (collecting these quotations).
242In re E. Eric Guirard & Thomas R. Pittenger, No. 08-B-2621 (La. 2009).
243MP McQueen, As the Litigation Funding Industry Grows, So Do Efforts to Control It, Law.com, July 11, 2019; Binyamin Appelbaum, Lobby Battle Over Loans for Lawsuits, N.Y. Times, Mar. 9, 2011, at B1.
244McQueen, supra note 243.
245Susan Lorde Martin, The Litigation Financing Industry: The Wild West of Finance Should Be Tamed Not Outlawed, 10 Fordham J. Corp. & Fin. L. 55, 74–75 (2004) (arguing that ALF can level the playing field); Jonathan T. Molot, Litigation Finance: A Market Solution to a Procedural Problem, 99 Geo. L.J. 65, 68 (2010) (contending that ALF can promote accuracy in adjudication).
246Binyamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, N.Y. Times, Jan. 17, 2011, at A1.
247See Am. Bar Ass’n Comm’n on Ethics 20/20, Informational Report to the House of Delegates on Alternative Litigation Financing (2011).
248W. Bradley Wendel, Alternative Litigation Finance and Anti-Commodification Norms, 63 DePaul L. Rev. 655, 657 (2014).
249For context, see Fred C. Zacharias, Limits on Client Autonomy in Legal Ethics Representation, 81 B.U. L. Rev. 199, 237 (2001).
250In re Mid-Atlantic Toyota Antitrust Litig., 93 F.R.D. 485, 490 (D. Md. 1982).
251Danielle Z. Cohen, Advancing Funds, Advancing Justice: Adopting the Louisiana Approach, 19 Geo. J. Legal Ethics 613 (2006); James E. Moliterno, Broad Prohibition, Thin Rationale: The “Acquisition of an Interest and Financial Assistance in Litigation” Rules, 16 Geo. J. Legal Ethics 223 (2003).
252Maya Steinitz & Abigail C. Field, A Model Litigation Finance Contract, 99 Iowa L. Rev. 711, 739–40 (2014).
253Id.
254Id. at 762. Cf. Anthony J. Sebok, Should the Law Preserve Party Control? Litigation Investment, Insurance Law, and Double Standards, 56 Wm. & Mary L. Rev. 833 (2015).
255In re Primus, 436 U.S. 412, 424–25 n.15 (1978) (defining maintenance and champerty).
256For more on champerty and maintenance, see Courtney R. Barksdale, Note, All That Glitters Isn’t Gold: Analyzing the Costs and Benefits of Litigation Finance, 26 Rev. Litig. 707 (2007).
257But see Oasis Legal Fin. Grp., LLC v. Coffman, 361 P.3d 400, 410 (Colo. 2015) (“We hold that litigation finance companies that agree to advance money to tort plaintiffs in exchange for future litigation proceeds are making ‘loans’ subject to Colorado’s UCCC even if the plaintiffs do not have an obligation to repay any deficiency . . . .”).
258See generally Engstrom, supra note 199.
259Michael J. Bologna, Wisconsin Enacts Litigation Funding, Civil Justice Overhaul Law, Bloomberg Law, Apr. 12, 2018.
260Jamie Hwang, Wisconsin Law Requires All Litigation Funding Arrangements to Be Disclosed, A.B.A. J., Apr. 10, 2018 (quoting Lisa A. Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform).
261Nora Freeman Engstrom & Nathan Werksman, Trump Travel Ban Shines Light on Litigation Funding, Daily J., Feb. 14, 2017; Andrew Ross Sorkin, Peter Thiel, Tech Billionaire, Reveals Secret War with Gawker, N.Y. Times, May 25, 2016, at A1.
262This problem is drawn from Conn. Ethics Op. 10 (2011).
The Distribution of Legal Services
As we saw in the last chapter, lawyers function within a system of market regulation that is designed to protect the public against abusive practices but also has the effect of limiting who can provide legal services and affecting how much legal services cost. Within this system, the default rule is that clients pay for their lawyers’ services. In an unequal society, this means that people and organizations with greater resources will have more access to law. This chapter explores how the legal profession, and society more broadly, have responded to the challenge of inequality in the distribution of legal services. It begins in Section A by examining the often-heard claim that there are too many lawyers and too much litigiousness. Section B then addresses the opposite problem—of inadequate access to lawyers by low- and moderate-income people. Finally, Section C, explores various mechanisms for redistributing legal services to those with insufficient resources to afford them in the private marketplace. It examines the right to counsel movement, subsidized legal services, public interest law, pro bono and low bono service, alternative dispute resolution, and technology and efforts simplify legal processes.
A.Perceptions of Litigiousness: The Overlawyered Society
(Ed. 1858).
The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest, near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation: Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.
Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.
On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here—as here he is—with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate 862with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon, some score of members of the High Court of Chancery bar ought to be—as here they are—mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words, and making a pretense of equity with serious faces, as players might. On such an afternoon, the various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be—as are they not?—ranged in a line, in a long matted well (but you might look in vain for Truth at the bottom of it), between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them. Well may the court be dim, with wasting candles here and there; well may the fog hang heavy in it, as if it would never get out; well may the stained-glass windows lose their colour, and admit no light of day into the place; well may the uninitiated from the streets, who peep in through the glass panes in the door, be deterred from entrance by its owlish aspect, and by the drawl languidly echoing to the roof from the padded dais where the Lord High Chancellor looks into the lantern that has no light in it, and where the attendant wigs are all stuck in a fog-bank! This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man’s acquaintance; which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, “Suffer any wrong that can be done you, rather than come here!”
Who happen to be in the Lord Chancellor’s court this murky afternoon besides the Lord Chancellor, the counsel in the cause, two or three counsel who are never in any cause, and the well of solicitors before mentioned? There is the registrar below the Judge, in wig and gown; and there are two or three maces, or petty-bags, or privy-purses, or whatever they may be, in legal court suits. These are all yawning; for no crumb of amusement ever falls from JARNDYCE AND JARNDYCE (the cause in hand), which was squeezed dry years upon years ago. The short-hand writers, the reporters of the court, and the reporters of the newspapers, invariably decamp with the rest of the regulars when Jarndyce and Jarndyce comes on.
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it 863means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.
Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. . . . The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, “or when we get through Jarndyce and Jarndyce, Mr. Blowers”—a pleasantry that particularly tickled the maces, bags, and purses.
How many people out of the suit, Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt, would be a very wide question. From the master, upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes; down to the copying-clerk in the Six Clerk’s Office, who has copied his tens of thousands of Chancery-folio-pages under that eternal heading; no man’s nature has been made the better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors’ boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise, was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it, but has acquired too a distrust of his own mother, and a contempt of his own kind. Chizzle, Mizzle, and otherwise, have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter, and see what can be done for Drizzle—who was not well used—when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking, in all their many varieties, have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from 864the outermost circle of such evil, have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong, it was, in some offhand manner, never meant to go right.
Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery. . . .
“Several members of the bar are still to be heard, I believe?” says the Chancellor, with a slight smile.
Eighteen of Mr. Tangle’s learned friends, each armed with a little summary of eighteen hundred sheets, bob up like eighteen hammers in a pianoforte, make eighteen bows, and drop into their eighteen places of obscurity.
“We will proceed with the hearing on Wednesday fortnight,” says the Chancellor. For the question at issue is only a question of costs, a mere bud on the forest tree of the parent suit, and really will come to a settlement one of these days.
For additional perspectives, consider the following quotations. The first is by Russian novelist and historian Aleksandr Solzhenitsyn:
Western society has chosen for itself the organization best suited to its purposes and one I might call legalistic. The limits of human rights and rightness are determined by a system of laws; such limits are very broad. . . . If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint or a renunciation of these rights, call for sacrifice and selfless risk; this would simply sound absurd. Voluntary self-restraint is almost unheard of; everybody strives toward further expansion to the extremes of the legal frames. . . .
But a society with no other scale but the legal one is also less worthy of man. A society based on the letter of the law and never reaching any higher fails to take advantage of the full range of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man’s noblest impulses.1
The second, by former President George W. Bush, at a gathering in 2003:
We’re a litigious society; everybody is suing, it seems like. There are too many lawsuits in America. . . . People who have got a 865claim, a legitimate claim, must have a hearing in our courts. . . . And they deserve a court that is uncluttered by junk and frivolous lawsuits.2
Finally, consider the views of television personality and former journalist, John Stossel:
Even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things: swimming pools, playgrounds, and gymnastic programs close because liability is so expensive. . . . Companies that started work on a safer asbestos substitute, an AIDS vaccine, and a Lyme disease vaccine gave up the research because any work in those areas risked stirring up the lawyers. The liability risk was too great.3
As the above quotes suggest, concerns about litigiousness and the legalization of American society are by no means new. The last three centuries have witnessed countless variations on the themes fictionalized by Charles Dickens and highlighted by Aleksandr Solzhenitsyn, George W. Bush, and John Stossel. It has been often asserted and widely assumed that America has had “too much law and too little justice,” and that lawyers are, in large part, to blame.4
Yet, as the continuity of such critiques suggests, such concerns have done little to discourage the nation’s investment in legal process. Indeed, the history of Solzhenitsyn’s denunciation of legalism provides an ironic illustration of our cultural ambivalence toward legalization. When some of his admirers sought to republish the address in a volume of commentary, Solzhenitsyn initially withheld permission and threatened legal action. In the abstract, the “letter of the law” may have seemed too “cold and formal to have a beneficial influence on society,” but in his own case, Solzhenitsyn (as well as his adversaries) apparently found it of some use.5 It also bears note that former President George W. Bush, who long complained about “too many lawsuits,” owed his 2000 election to one.
866Most complaints about American “hyperlexis” involve four related claims. Critics assert that we have too many lawyers, too much litigation, too much law, and too much legal expense. Each of these assertions is explored below.
Since the Colonial era, Americans have complained about the number of lawyers and have blamed lawyers for the nation’s proliferation of laws and lawsuits. As one op-ed in the Boston Globe complained:
With almost 1.3 million lawyers—more by far than any other country, and more as a percentage of the national population than almost all others—the United States is choking on litigation, regulation, and disputation. Everything is grist for the lawyers’ mills.6
Yet, this criticism, and others like it, tend to rely on misleading assumptions.
First, the facts are often wrong. One widely repeated assertion is that America has 70 percent of the world’s lawyers, but that’s widely off the mark. Informed estimates put the figure somewhere between a quarter and a third, which is roughly the United States’ share of the world’s Gross National Product.7 Furthermore, cross-cultural comparisons can be misleading since they fail to reveal the number of practitioners in other countries who are not licensed members of the bar but nevertheless perform tasks that, in this country, are largely reserved for lawyers. In Germany, for example, in-house counsel do not belong to the bar, and are not counted as members of the legal profession. Likewise, in Japan, a large number of individuals receive formal legal training and perform legal functions but are not considered “lawyers” because they are not permitted to act as courtroom advocates. These workarounds were fashioned because, until recently, Japan imposed quotas that artificially curtailed attorney supply. Further, it’s revealing that, over the past decade, Japan has taken steps specifically to boost its number of licensed lawyers to counter what Japanese officials see as a damaging shortfall in legal assistance, particularly in rural areas.8
Similarly, the frequent criticism that lawyers never “make the pie grow larger [but] only decide how to carve it up,” is catchy—but ultimately inaccurate.9 As a description of American attorneys’ role in corporate planning, regulatory compliance, civil liberties litigation, or criminal defense, the pie metaphor seems somewhat lacking—“pie in the 867sky,” as Professor David Luban has put it.10 An engineer’s product has value only if it can be developed, protected, and marketed within a complex network of legal relations. Contracts, patents, trade secrets, securities laws, and health and safety regulations may all be implicated. Lawyers who sue to protect an engineer’s intellectual property rights aren’t just “dividing the pie”; they are also enforcing a system of incentives that reward innovation and thereby make the pie larger.
Claims about America’s hair-trigger litigiousness are equally problematic. According to recent polls, 87 percent of American voters believe that there are “too many lawsuits filed in America,” and 86 percent believe that there is an “increasing tendency for Americans to threaten legal action and lawsuits when things go wrong.”11
Both conceptions are unsupported by evidence. For starters, experts generally agree that current litigation rates are not exceptionally high, either as compared to prior eras or as against many other Western industrialized nations not known for contentiousness. Per capita court filings in the U.S. are in the same range as in Canada, Australia, New Zealand, England, Denmark, and Israel.12 Nor is it clear that filing rates are an accurate measure of cultural combativeness or legal hypochondria. Roughly 98 percent of American litigation occurs in state courts, where uncontested divorces account for a high proportion of the caseload. Such cases hardly constitute a major drain on judicial resources; many family court hearings last less than five minutes.13
Tort cases, such as medical malpractice and product liability claims, trigger perhaps the greatest criticism. But rather than experiencing any “litigation explosion,” these cases are declining by basically every measure. According to data gathered by the National Center for State Courts, in 2015, fewer than two in 1000 people filed tort lawsuits; in 1993, the comparable figure was ten per 1000. It’s a stunning decline, which represents, in the words of the Wall Street Journal, a “nationwide ebb in lawsuits, which confounds the public perception of courts choked with tort claims.”14 Damages for prevailing plaintiffs are also down. According to the Bureau of Justice Statistics, between 1992 and 2005, the 868median jury tort award decreased a dramatic 54 percent, from $71,000 to $33,000, in inflation-adjusted dollars.15
So too, across the system, trials are declining, leading to what many call the “vanishing trial.”16 According to a recent summary:
In 1938, trials resolved roughly 20 percent of civil cases in federal court. By 1990, only 4.3 percent of federal civil filings reached trial. By 2000, a mere 2.2 percent did. And, most recently, in 2016, the civil trial rate was halved again. Over the past twenty years, between 1997 and 2016, the number of civil trials in the nation’s federal courts dropped 62 percent. Another way to look at it: Federal courts conducted half as many civil trials in 2016 than they did in 1962, even while disposing of over five times as many civil cases.
At the state level, where the vast majority (perhaps 98 percent) of civil litigation takes place, trial rates are lower still. The National Center for State Courts (NCSC) reports that, in 2016, the percentage of civil cases resolved by jury trial ranged from .05 percent to .50 percent in the twenty-four jurisdictions studied. In these states, as on the federal level, the trend is sharply downward: From 2000 to 2009, for example, the percentage of state civil jury trials dropped a stunning 47.5 percent.
Zeroing in on individual jurisdictions reveals a picture that is particularly stark. The entire state of West Virginia saw twenty-one federal civil trials (bench and jury) in 2016. Wyoming saw eight. Alaska saw three. And Vermont saw two. The story in states is similar. In Iowa in 2014, for example, there were thirteen counties where no trial verdicts were entered whatsoever, and there were sixty-one counties with three or fewer jury verdicts (whether in civil or criminal cases).17
Meanwhile, it’s commonly said that Americans sue one another “at the drop of a hat.”18 But evidence suggests otherwise. Again looking at the tort system, overall, only about 10 percent of injured Americans seek any kind of redress when accidentally injured, only 4 percent hire an 869attorney, and only about 2 percent of injury victims actually sue.19 More than 80 percent of injured Americans never even consider claiming.20
Within some areas, most notably medical malpractice, rates of lawsuit initiation are even lower. 21 As Professor Tom Baker put it, after evaluating several studies that compared litigated cases to hospital evaluations of medical error: “The vast majority of eligible patients do not sue. The idea that Americans are suit-happy, litigation-crazy, and ready to rumble in the courts is one of the more amazing myths of our time. It grows stronger with each piece of the by now overwhelming research showing that it is simply not true.” 22
The frequently cited “evidence” for America’s supposed undue litigiousness tends to rely on unrepresentative examples—disputes that are too big for courts, disputes that are too small, and disputes that shouldn’t be disputes at all—or examples that have been made to look silly, but actually aren’t. A textbook illustration involves the classic McDonald’s “hot coffee” case, which to most journalists served as an all-purpose indictment of the legal profession and legal process: An avaricious lawyer paraded a petty incident before an out-of-control jury and extracted an absurd recovery. Newspaper editorials, radio talk shows, and magazine commentaries replayed endless variations on the theme summarized by the national Chamber of Commerce: “Is it fair to get a couple of million dollars from a restaurant just because you spilled hot coffee on yourself?”
On closer examination, the question no longer looks rhetorical. The case which ignited such a media firestorm arose because on February 27, 1992, a seventy-nine-year-old woman named Stella Liebeck suffered acutely painful third-degree burns on her inner thighs when 180-degree coffee from McDonald’s spilled from a Styrofoam cup. As a result of the spill, Ms. Liebeck went into shock, spent eight days in the hospital, and received skin grafts. Only after McDonald’s refused to reimburse her medical expenses did she bring suit. At trial, jurors learned of 700 other burn cases involving McDonald’s coffee during the preceding decade. They also learned that, although medical experts had warned that such high temperatures were causing serious injuries, the corporation’s safety consultant had dismissed the complaints as “trivial.” In addition, at the time Liebeck initiated her suit, McDonald’s coffee was served hotter than that at comparable restaurants and a full thirty degrees hotter than the coffee brewed from home brewing machines. Physicians testified that, at the lower temperature of other restaurants’ coffee, Ms. Liebeck’s burns 870would not have been nearly as severe. Further, although the jury’s award (of roughly $2.8 million) was large in some commentators’ eyes, the award was not arbitrary. The jury’s punitive damages award represented two days of coffee sales revenues, and the judge reduced the judgment to $640,000. To avoid an appeal, the plaintiff then settled the case for a smaller undisclosed sum.
Ms. Liebeck brought her suit because, she said, “I want them to bring the temperature down so that other people will not go through the same thing I did.” Fulfilling her wish, apparently as a result of Ms. Liebeck’s actions, the lids of McDonald’s coffee cups began to carry the clear warning “Hot! Hot! Hot!,” and the temperature of the coffee sold in at least some McDonald’s restaurants dropped down to safe levels.23
That is not to discount the problem of meritless or vastly exaggerated damage claims and the personal and financial costs they impose. Yet as is clear from the discussion of the McDonald’s case, as well as the discussion of frivolous cases in Chapter 7, the boundary between vindictiveness and vindication is often difficult to draw, and disproportionate media coverage of large recoveries distorts public perceptions.24
3.Too Much Law/Too Much Expense
A related concern is that American society in general and business in particular suffer from too much law, which is too complicated, too costly, and too often ineffective.25 Part of the concern about “too much law” relates to litigation’s expense. Over four-fifths of surveyed Americans believe that litigation is too costly. And it is true: Lawsuits are an undeniably expensive way to resolve disputes. According to the Federal Judicial Center, pursuing an action in federal court costs plaintiffs a median of $15,000, including attorneys’ fees.26 Other research shows defense costs are also high and climbing fast.27 These costs, typically called “transaction costs,” impose substantial burdens on 871plaintiffs and defendants alike. In automobile accident cases, for example, nearly 50 percent of the payments by insurance companies are consumed prior to reaching the plaintiff.28 In certain other tort cases, the transaction costs may be even higher, on the order of 60 percent.29 Such problems have sparked a wide variety of reform proposals, some of which are considered in the materials on nonlawyer services in Chapter 13, Market Regulation, and also in Section C below.
At the same time, part of the concern about “too much law” relates to that the view, shared by approximately two-thirds of Americans, that lawsuits are damaging the country’s economy.30 This belief is harder to validate. In assessing the concern, it is important to separate two related but distinct questions. First, are the total costs of legal liability a threat to American economic health? Second, do the total costs of legal liability outweigh the benefits?
Although we lack reliable assessments of the total costs of civil liability, some informed calculations are available for the tort system. Most notably, a recent and sophisticated study by Professor Frank Cross, which relied on data collected by the Chamber of Commerce and the Pacific Research Institute, attempted to discern the relationship between substantive tort law and economic growth. Comparing the economic growth of states with particularly pro-defendant and particularly pro-plaintiff tort laws, Professor Cross concluded: “Contrary to conventional wisdom, the evidence shows no negative economic effects with more plaintiff-friendly tort law.”31 Pro-plaintiff tort laws, in other words, did not drag down state economies.
So too, many critics of the costs of legalization fail to acknowledge associated benefits. For example, commentators often complain that products cost too much or unnecessary medical tests are performed because of liability expenses. John Stossell in the Wall Street Journal asserts that “every football helmet costs $100 more because of lawsuits,” and that some “financially strapped schools no longer have football programs.” “The kids play in the streets. Is that safer?,” Stossell wonders.32 But what he doesn’t wonder is how many students play other sports that are safer, or how many serious head injuries have been avoided due to helmet redesign. In commenting on the frequency of business litigation noted earlier, another Wall Street Journal op-ed put the question: “Are these statistics a confirmation of America’s vicious, tail-chasing lawsuit crisis? Or are they a vote of high confidence in the 872judicial system as a means of enforcing contracts, safeguarding intellectual property, and stopping fraud?”33
A related concern about the expense of litigation is that undue risks of liability and excessive insurance premiums cause businesses not to distribute valuable products and, particularly in the medical sphere, force doctors to shift their practice locations, change their specialties, or order unnecessary tests. Yet, the extent of this problem is also overstated. In the medical malpractice realm, for example, only about 3 percent of doctors’ revenue goes to cover malpractice premiums, an amount not self-evidently excessive or likely to cause major career changes.34 Further, though many believe that excessive malpractice liability causes physicians to flee particular states or curtail their practices, that, too, is not clear. Many researchers have attempted to discern a link between tort liability and physician supply, but, even after years of analysis, there is scant evidence that tort liability causes physicians to retire early, relocate, or restrict their practices.35 Likewise, though it does seem that “defensive medicine” (instances when physicians, concerned about liability, test or treat despite the lack of medical necessity) is widespread, physician conduct tends to be more affected by the perceived, as opposed to the real, liability risk.36 Finally, while product withdrawals have sometimes been a major problem, as in the case of Bendectin to alleviate morning sickness, in other instances litigation has resulted in the removal of major safety risks. Obvious examples include the tragedies prevented or mitigated because of litigation concerning Firestone Tires, flammable pajamas, cigarettes, opioids, faulty ignition switches on certain GM automobiles, and Dalkon Shield IUDs.37
In cases involving social justice issues rather than product safety, determining whether litigation is cost-justified is doubly difficult, as any assessment requires complex and contested value judgments. As Professor Lawrence Friedman puts it:
873[T]he benefits [of legal claims] . . . , are often quite intangible and immeasurable: social justice, expanded opportunities for women and minorities, expansion of civil liberties, fair procedures within institutions, limits on government. Who would deny that these are significant gains? Whether they are worth the costs is a question that models and equations cannot answer.38
Furthermore, to the extent we do have “more” law now, as compared to previously—or in the United States, as compared to other industrialized societies—that is not necessarily a bad thing. Many believe that recent increases in the reach and volume of law reflect broader cultural needs. As societies become more technologically sophisticated and as patterns of life become more interdependent, the necessity of legal regulation becomes correspondingly greater. In many Western industrialized countries, improvements in the standard of living have led to increased expectations about the role of legal and governmental institutions in maintaining that standard. So, for example, industrial accidents, discriminatory and harassing conduct, and inadequacies in social services that were once accepted as a matter of course now prompt demands for remedial action. Throughout the last century, many societies have increased their expectations for what Professor Friedman calls “Total Justice.”39 The sense is that individuals should be protected from an increasing array of harms and should be compensated for injuries and injustices that have not been prevented.
Additionally, as commentators since Alexis de Tocqueville have noted, the United States has always placed more reliance on law and courts to solve social problems than most other societies. Americans traditionally have distrusted centralized power and have checked its exercise through a system of privately initiated lawsuits and judicial review. This culture’s individualist ideology places a high priority on civil rights and liberties. Litigation offers protection for fundamental values such as freedom of speech, due process, privacy, religious liberty, and equal opportunity that are central to our cultural heritage.
Privately-financed lawsuits are also a financially attractive way to enforce public mandates and provide social safety nets without spending taxpayer dollars. Much of this nation’s environmental, antitrust, securities, consumer, intellectual property, anti-fraud, and antidiscrimination regulation and enforcement occurs, not via public bureaucracies (as it does elsewhere) or even through government-initiated litigation. It occurs, rather, through the decentralized, privately funded efforts of public interest attorneys and plaintiffs’ lawyers. The same can be said of important conservative victories in recent years, such as rollbacks of affirmative action and the establishment of constitutional 874gun rights. As political scientist Robert Kagan notes, in the United States, “demands for total justice and regulatory protections have been filtered through a political culture that mistrusts ‘big’ government and resists high taxes . . . [and a] political system that lacks strong national law enforcement, regulatory, medical care and welfare bureaucracies.”40
1.Do you believe America has “too much law, too little justice?” Both? Neither? What, if any, problems would you identify in the current system?
2.If you were a bar association leader, how would you respond to claims about America’s oversupply of law and lawyers? Would your response be different if you were a leader of a consumer organization?
3.The above discussion shows that many commonly-held beliefs about the American civil justice system are not, in fact, empirically supported. If these beliefs lack empirical support, why do they continue to hold sway?
B.Problems of Access: The Underlawyered Society
In a society in which legal services are distributed through the private market, access to lawyers depends on one’s ability to pay. Because individuals’ ability to pay varies dramatically with income, those with more resources are able to afford more justice than those with fewer. Research has shown that big business tends to be the biggest consumer of legal services. In their famous study of Chicago lawyers, John Heinz and his colleagues found that large corporate clients consumed nearly one-third of total legal effort in 1995.41
How do those without significant resources pay for lawyers? As we will discuss below, the United States (and other countries) has developed a variety of mechanisms to redistribute legal services to the “have-nots”—including state subsidies, fee-shifting, and pro bono (and low bono) service. But these mechanisms are widely viewed as insufficient in providing access to lawyers for all those at the bottom of the income scale (and many in the middle, too). Accordingly, access to justice proponents have also argued for changes in the market for legal services (reducing barriers so nonlawyers can provide legal advice) and the legal system (reducing complexity and bureaucracy) that could more effectively address the legal needs of low- and middle-income Americans.
In theory, access to justice is difficult to oppose. Most agree on the scope of the problem. A 2019 study by the World Justice project found that 1.4 billon people worldwide have unmet civil or administrative 875justice needs.42 The same study ranked the United States 30th out of 126 countries for the accessibility and affordability of its civil justice—below Uruguay, the Czech Republic, Namibia, and the United Arab Emirates.43 The problem was compounded by the Great Recession and its aftermath, when increasing rates of legal needs bumped up against cutbacks in legal providers’ budgets.44 However, despite the economic recovery, downward pressure on federal legal services funding under the Trump administration has meant that, for many Americans, access to lawyers remains out of reach.45 The COVID-19 crisis has created an unprecedented challenge that confronts legal services, and the federal safety net more broadly, with an uncertain future.
For over a half-century, the federal government has subsidized some lawyers to provide free representation to the poor in non-criminal matters. The federal Legal Services Corporation (LSC) is the umbrella organization that supports free legal services to the poor by lawyers in neighborhood-based offices. As part of its mission, LSC conducts research to document the “justice gap”—that is, the gap between the legal needs of the poor and the availability of lawyers to meet those needs. The excerpt that follows details its most recent findings.
Legal Services Corporation, “The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans”
9, 16, 21–22, 29–31, 41, 44 (2017).
The phrase “with liberty and justice for all” in the U.S. Pledge of Allegiance represents the idea that everyone should have access to justice, not just those who can afford legal representation. In criminal cases, legal assistance is a right. Americans accused of a crime are appointed legal counsel if they cannot afford it. As a general matter, however, there is no right to counsel in civil matters. As a result, many low-income Americans “go it alone” without legal representation in disputes where they risk losing their job, their livelihood, their home, or their children, or seek a restraining order against an abuser. This “justice gap”—the difference between the civil legal needs of low-income Americans and the resources available to meet those needs—has stretched into a gulf. State courts across the country are overwhelmed with unrepresented litigants. In 2015, for example, an estimated 1.8 million people appeared in the New York State courts without a lawyer. And we know that 98% of tenants in eviction cases and 95% of parents in 876child support cases were unrepresented in these courts in 2013. Comparable numbers can be found in courts across the United States. This study explores the extent of the justice gap in 2017, describing the volume of civil legal needs faced by low-income Americans, assessing the extent to which they seek and receive help, and measuring the size of the gap between their civil legal needs and the resources available to address these needs. . . .
A family income below 125% of the Federal Poverty Level (FPL) corresponds to $30,750 per year or less for a family of four. Based on recent estimates from the Census Bureau, nearly one in five Americans (19%) have family incomes below 125% of FPL. This comes to about 60 million people, including approximately 19 million children (0–17 years), 35 million adults aged 18–64 years old, and 6.4 million seniors (65+ years). . . .
Seventy-one percent of low-income households have experienced at least one civil legal problem in the past year. Many of these households have had to deal with several issues. Indeed, more than half (54%) faced at least two civil legal problems and about one in four (24%) has faced six or more in the past year alone. The civil legal problems these Americans face are most often related to basic needs like getting access to health care, staying in their homes, and securing safe living conditions for their families. . . .
[C]ivil legal problems related to health and to consumer and finance issues affect more households than any other type of issue. Health issues, for example, affect more than two in five (41%) low-income households. The most common problems in this area include having trouble with debt collection for health procedures (affecting 17% of households), having health insurance that would not cover medically needed care or medications (17%), and being billed incorrectly for medical services (14%). Over one-third (37%) of low-income households have experienced consumer and finance problems in the past year. These issues typically follow from not being able to make payments for debt or utilities on time. The most common issues in this area include difficulties with creditors or collection agencies (affecting 16% of households), having utilities disconnected due to nonpayment or a billing dispute (14%), and having problems buying or paying for a car, including repossession (8%). . . .
Low-income Americans report seeking the help of a legal professional for only 20% of their problems. . . .
Low-income Americans say they have received or expect to receive as much legal help as they need for 69% of the problems where they sought professional legal help. While this is a promising result, it is important to remember that they seek professional legal help for only 20% of their problems. Additionally, some respondents indicate that they tried to get professional legal help but were unable to do so. Taking all of this together, we find that low-income Americans receive inadequate or 877no professional legal help for 86% of their civil legal problems in a given year.
People are most likely to seek professional legal help for problems related to children and custodial issues and wills and estates. Low-income Americans seek such help for 48% of their civil legal problems related to children and custody and for 39% of their problems related to wills and estates. Of all the civil legal problems . . . , the ones in these categories are more obviously “legal.” Issues relating to children and child custody, for example, usually have to be decided or approved by a judge. Similarly, issues dealing with wills and estates involve legal paperwork and often lawyers as well. While civil legal problems related to health issues and consumer and finance issues are the most commonly experienced problems among low-income Americans, they are not the problem areas most likely to get attention from a legal professional. . . .
[P]eople seek professional legal help for only 18% of their civil legal problems related to consumer and finance and for only 11% of those related to health. . . .
People who seek the help of a legal professional rely on various sources. They most often turn to legal aid organizations (30% of problems), paid private attorneys (29%), and social or human services organizations (24%). They go to volunteer attorneys 11% of the time and to disability service providers 10% of the time. Finally, low-income Americans reach out for help through legal hotlines for 8% of their civil legal problems. . . .
Low-income Americans do not seek professional legal help for 78% of the civil legal problems they face in a given year. When someone does not seek such help, they turn to other resources about half of the time (for 54% of problems for which professional legal help is not sought). They speak with others who are not legal professionals (commonly friends and family members) for 33% of these problems, search for information online for 13% of these problems, or take both of these actions for 8% of these problems. When people search for information online, they often search for legal information about procedures to resolve a specific civil legal problem, legal rights on specific issues, or how to get legal assistance. . . .
In 2017, LSC grantees will provide some form of legal assistance for an estimated 999,600, or 59%, of eligible problems presented by low-income Americans. . . .
We find that between 62% and 72% of all eligible problems brought to LSC grantees either receive no legal assistance or receive a level of assistance that is not expected to fully address the client’s legal needs. That corresponds to an estimated 1.1 to 1.2 million eligible civil legal problems expected to go unserved or underserved in 2017 alone. The 62% figure underestimates the problems unserved or underserved. It treats “served, but extent pending” problems as being “served fully.” Conversely, the 72% figure is an overestimation, treating “served, but 878extent pending” problems as “served, but not fully.” In reality, the rate will fall somewhere in between. A lack of available resources accounts for the vast majority of eligible civil legal problems that go unserved or underserved. Civil legal problems that are unserved or underserved due to limited resources account for the vast majority of the problems that do not receive the assistance necessary to fully address the client’s needs. . . . Overall, we estimate that insufficient resources account for between 85% and 97% of all unserved or underserved eligible problems, representing 53% to 70% of all eligible problems. This corresponds to an estimated range of about 900,000 to 1.2 million problems for which the assistance necessary to meet the legal needs of low-income Americans cannot be provided due to a lack of resources.
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Other legal needs studies add texture to this general picture. In Rebecca Sandefur’s 2014 study for the American Bar Foundation of a random sample of Americans in a middle-sized city, she found:
[T]wo-thirds . . . reported experiencing at least one of 12 different categories of civil justice situations in the previous 18 months. For the whole sample, the average number of situations was 2.2. . . . The most commonly reported kinds of situations involved bread and butter issues with far-reaching impacts: problems with employment, money (finances, government benefits, debts), insurance and housing. Poor people were more likely to report civil justice situations than were middle-income or high-income people. African Americans and Hispanics were more likely to report such situations than Whites.
People reported that almost half (47%) of the civil justice situations they experienced resulted in a significant negative consequence such as feelings of fear, loss of income or confidence, damage to physical or mental health, or verbal or physical violence or threats of violence. . . .
Typically people handled these situations on their own. For only about a fifth (22%) of situations did they seek assistance from a third party outside their immediate social network, such as a lawyer, social worker, police officer, city agency, religious leader or elected official. When people who did not seek any assistance from third parties outside their social circles were asked if cost was one barrier to doing so, they reported that concerns about cost were a factor in 17% of cases. A more important reason that people do not seek assistance with these situations, in particular assistance from lawyers or courts, is that they do not understand these situations to be legal.46
879Many experts believe that legal needs studies understate the total problem. Most surveys do not include accidental injuries that the contingent fee system leaves unaddressed.47 These surveys also leave out collective problems with which public interest groups are concerned (e.g., environmental risks, consumer safety protections, school financing, or voting rights). A focus only on individual grievances can deflect attention from the structural forces that may prevent larger problems’ recognition and redress.
These surveys also raise broader questions about how much “naming, blaming, and claiming” we want to encourage and how much we are prepared to invest in that enterprise.48 Sandefur argues that because most justice problems do not actually present “legal needs” (i.e., they do not require lawyers and the legal system to resolve), the focus on expanding access to lawyers is misplaced:
Focusing on existing programs that deliver legal services and on court cases will never provide a picture of all of the other civil justice activity that never makes it to the justice system—and that is the majority of civil justice activity. Practically speaking, it would be impossible for the nation’s existing courts, administrative agencies, and other forums that resolve disputes to process the estimated more than one hundred million justice problems that Americans experience every year. There is no reason to want them to.49
As this suggests, although there is broad agreement that the quality of justice one receives should not depend on his or her ability to pay, there is little consensus on an alternative. Although some commentators argue for “equal access,” such claims raise the question R. H. Tawney once posed about equal opportunity generally: It is unclear what would terrify supporters more, “the denial of the principle or the attempt to apply it.” Given the broad range of problems that could be considered legal, and the wide disparity of skills among lawyers, any serious attempt to equalize access would require massive public subsidies. More modest demands to expand, if not fully equalize, access usually skirt the sticky points. How much are we prepared to pay? How do legal services compare with other demands on our collective resources? As Marc Galanter has questioned, “is the utopia of access to justice a condition in which all disputes are fully adjudicated?”50
Moreover, access to the justice system will not necessarily bring disadvantaged parties closer to justice in a substantive sense. “Poor 880peoples’ courts” that handle family, landlord/tenant, small claims, and minor criminal proceedings are often overburdened and understaffed.51 And in many contexts, the “haves” are often still likely to come out ahead, given other advantages apart from lawyers, such as the resources to take risks, tolerate delay, structure transactions in light of potential disputes, and lobby for the reversal of unfavorable legal decisions.52
Consider Richard Abel’s arguments for equalizing the distribution of legal services, which is followed by David Luban’s analysis of equal justice under law. Is that ideal a realistic societal aspiration? What would be its policy implications? Can it even be defined?
Richard L. Abel, “Legal Services”
Handbook of Applied Sociology 417–21 (M. Micklin & M. Olsen, eds., 1981).
Equality in the distribution of legal services has a value beyond that of enhancing the welfare of the unrepresented or underrepresented. The very integrity of the U.S. legal system as an adversary system depends upon equal representation of all parties. The legitimacy of contemporary law rests on the assumption that optimally efficient allocations of scarce resources are produced by parties who freely negotiate with each other on the basis of equal information about the law and equal competence to use it. The adversarial model of litigation—whether in a civil action or a criminal prosecution—is grounded upon the belief that factual truth and fidelity to substantive and procedural rules are best achieved by partisan struggle between equal opponents, which at a minimum means opponents who are equally represented. Moreover, the theory of democratic pluralism assumes that all citizens are equally able to influence the making and application of laws. Given the influence of lawyers in U.S. politics, that assumption requires equal representation by lawyers before both the legislature and the executive at all levels of government.
David Luban, “Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers”
91 California Law Review 209, 212 (2003).
Critics will argue that access to justice is a concept with no real meaning because the level of access to lawyers that justice requires is impossible to specify. Does access mean every nonfrivolous litigable case should have a lawyer funded by the government? Such a notion raises two problems. First, it implies a higher level of access than even the wealthiest purchasers of legal services enjoy. Even wealthy clients have 881limited budgets and must pick and choose which cases to litigate. Second, the concept of a “litigable case” is inherently indeterminate. The point at which a dispute breaks through from the informal to the formal legal system depends in part on the cost of legal services; no dispute is intrinsically litigable or not. If lawyers were cost-free, then perhaps even extremely trivial disputes would migrate into the formal system. This hardly seems like a desirable state of affairs. Increasing the supply of free lawyers would undoubtedly drive up demand, so “access to justice” becomes a receding target.
Perhaps “access” ideally entails that every cost beneficial case should have a lawyer. Here, too, the concept is indeterminate: whether a case is cost beneficial depends on how expensive a lawyer is. Maybe a better approach is that every case that would be cost beneficial for a litigant to bring if the lawyer were charging normal market rates should have a lawyer. But this neglects the possibility that although the litigation is cost beneficial to the plaintiff, the total social costs of providing formal justice outweigh the benefit. Alternatively, access to justice could be defined in terms of access for any matter that concerns a significant interest of the litigant. This, however, seems too restrictive: surely, poor people should be able to use the formal system to redress grievances even if they do not involve major rights violations.
The definitional questions become even more vexing once we realize that lawyers can be useful for many law-related problems that do not involve litigation. A great many poor person’s problems can be solved by a legally knowledgeable, articulate person making a few phone calls. But if the criterion of access means that everyone can obtain legal services whenever the services would be useful, we confront the fact that a good lawyer is an extremely useful person: a good lawyer is shrewd, adept at navigating the waters of institutional life, and prudent. Most of us could use one almost all the time, and this ideal of full access raises the nightmarish vision of everyone with their own personal general counsel accompanying them through daily life.
The conclusion of these arguments is that the ideal of access to justice—embodied most famously in the motto “Equal Justice Under Law” emblazoned on the Supreme Court building—threatens to land us on unacceptable slippery slopes under even the most plausible interpretations. But it is possible to cut those Gordian knots. Even if precise specification of equal justice under law eludes us, we know what equal justice is not. Creating legal institutions that can be navigated only by people with lawyers violates any meaningful interpretation of “equal justice under law” if large segments of the population cannot obtain a lawyer. Because lawyers are expensive, market-based distribution of legal services would exclude at least forty million people from access to legal institutions, and it follows that market-based distribution of legal services violates the equal-access ideal. . . . Our current system of subsidized legal services for the poor, however, is nearly 882indistinguishable from market-based distribution: it leaves 95 percent of poor people’s legal needs unaddressed. . . . Whatever the definition of access to justice turns out to be, we are nowhere near it. And so any cutback or restriction in legal services from the little we do now represents a step in the wrong direction.
1.What is your view on the distribution of legal services? Does the adversary system presuppose that all parties have access to effective assistance of counsel? What, if any, reforms would you propose?
2.Many more people take no action in response to legal problems in this country, as compared to the citizens of other comparable nations. For example, one survey reported that, in the United States, 38 percent of poor and 26 percent of middle-income individuals took no action in response to a legal problem, compared with 5 percent in England and 10 percent in the Netherlands.53 Why do you suppose that is? How does that fact comport with the view of the United States as an “overlawyered” society?
3.Does the ideal of access to justice have a determinate meaning? In its 2009 study of legal needs, the LSC stated that “[a]s a first, critical goal, there must be enough funding to serve all of those currently seeking help from LSC-funded programs. This requires a doubling of LSC funds and a doubling of the state, local and private funds that also support LSC grantees. The long-term goal must be to develop resources sufficient to meet the civil legal needs of all eligible low-income persons.”54 Would that recommendation meet the standard endorsed by Luban or Abel? If not, what would be required, and could it be made politically feasible? How would Sandefur respond to LSC’s proposal?
4.Luban argues that “market-based distribution of legal services violates the equal-access ideal” since it leaves unaddressed nearly all of the legal needs of poor people. In contrast, Gillian Hadfield contends the central problem with the current system is that the market has not been permitted to function well enough. In her view, “[r]educing the cost of accessing law requires reducing law’s complexity and the cost of specialized help.” 55 To achieve this, she argues for more market competition, not less. Specifically, Hadfield recommends reducing barriers to effective market competition by devolving professional regulation from the bar to private “super-regulators” who would compete to make “it possible for people to manage many of their own legal situations on their own.” She also proposes “changing the rules of professional practice to allow businesses that—like all other service 883 businesses in our economy—are owned, managed, and financed by people other than the specialists who are providing services to clients to compete.” 56 What is your view? To promote greater access to justice, do we need more regulatory intervention or less?
C.Efforts to Expand Legal Access
As noted above, there is a substantial gap between the aspirations and the operation of our legal system. Efforts to bridge this gap have prompted efforts along six basic lines:
(1)Pushing for a recognized right to legal assistance in civil, as well as criminal, cases (sometimes called “Civil Gideon”);
(2)Expanding the provision of subsidized legal assistance through public subsidies (particularly LSC);
(3)Increasing support for the resolution of collective legal problems through public interest law;
(4)Strengthening private pro bono and low bono contributions;
(5)Promoting fair and efficient alternative dispute resolution procedures that do not require lawyers; and
(6)Minimizing the cost of legal procedures and services through technology and other forms of innovation, such as greater reliance on apps, artificial intelligence, hotlines, computer programs, online assistance, qualified nonlawyers, courthouse facilitators, and unbundled legal services.57
The materials discuss these various approaches and their intended, and unintended, effects.
The unequal distribution of legal services, discussed above, exists alongside a long-discussed but much-contested right to legal services, at least for certain problems. It is this right to legal services we now explore.
In this country, demands for access to legal assistance have drawn on a number of constitutional provisions: the Sixth Amendment guarantee of assistance of counsel for criminal defendants, the Fifth and Fourteenth Amendment due process clauses, and the Fourteenth Amendment equal protection clause.
Under early English common law, defendants in felony prosecutions (except for treason) were not allowed to have legal representation at trial. The Sixth Amendment was intended to eliminate that prohibition in 884federal cases; twelve of the original thirteen states also eliminated it in their courts. It was not, however, until the mid-20th century that courts began interpreting constitutional guarantees to require counsel for criminal defendants who could not afford it. Prior to that, some federal and state statutes authorized appointment of counsel in capital trials, and courts sometimes asserted inherent authority to appoint counsel with or without compensation in other felony cases. But such appointments often occurred only after arraignment, when 70 to 80 percent of defendants had already pleaded guilty and others had made incriminating statements to the police.58
In the 1930s, the inadequacies of this system began to attract greater judicial concern. In the notorious Scottsboro case, the Supreme Court reversed the conviction of two indigent black defendants who were accused of raping white women and afforded only pro forma legal representation. The Court reasoned that a state’s failure to provide adequate legal assistance could violate the due process clause under certain circumstances. Writing for the majority, Justice Sutherland noted that the “right to be heard would in many cases be of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U.S. 45, 68–69 (1932). Several years later, the Court interpreted the Sixth Amendment to mandate counsel for indigent defendants in federal criminal cases. Johnson v. Zerbst, 304 U.S. 458 (1938).
Over the next several decades, the Court overturned a number of state court convictions on due process grounds where defense attorneys were not provided and where the proceedings were complicated, the penalties were severe, or the defendants were particularly ill-equipped to represent themselves due to youth, illiteracy, or unfamiliarity with the English language. Under Betts v. Brady, 316 U.S. 455, 462 (1942), the test was whether “fundamental fairness” demanded counsel’s assistance. Finally, in 1963, in response to a prisoner’s handwritten in forma pauperis petition, the Supreme Court held that any indigent defendant in a state felony proceeding was entitled to an attorney. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). It seemed an “obvious truth” that the ideal of insuring that “every defendant stands equal before the law . . . cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him.” The Court subsequently extended the guarantee of court-appointed counsel to juveniles, In re Gault, 387 U.S. 1 (1967), and to defendants charged with misdemeanors or given suspended sentences if the ultimate disposition could result in incarceration, Argersinger v. Hamlin, 407 U.S. 25 (1972); Alabama v. Shelton, 535 U.S. 654 (2002). In other proceedings involving the possibility of imprisonment, such as probation revocation hearings, the 885Court left decisions about appointment of counsel to be made on a case-by-case basis.
The Court was not, however, prepared to recognize a similar right in civil matters, even when those civil matters involved fundamental rights. In Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), a woman imprisoned for second-degree murder lost parental rights to her three-year-old son after a hearing at which she lacked assistance of counsel. Applying the due process standards of Mathews v. Eldridge, 424 U.S. 319, 335 (1976) and Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court held that decisions about whether to provide counsel in the absence of a “potential deprivation of physical liberty” should depend on evaluation of three factors: the private interest at stake, the government’s interest, and the risk that lack of counsel at the civil hearing would result in an erroneous decision. 452 U.S. at 26–27, 31. Under those standards, a majority of Justices found no reversible error because, the Court concluded, the assistance of counsel would not have made a “determinable difference.” Given the state’s strong factual case and the absence of “troublesome” issues of law, the failure to provide a lawyer did not make the procedure “fundamentally unfair.” Id. at 32, 33.
A related series of equal protection decisions evolved in similar fashion. In Ross v. Moffitt, 417 U.S. 600 (1974), the Court found no constitutionally protected right to counsel’s assistance in optional criminal appeals in federal court, and in Pennsylvania v. Finley, 481 U.S. 551 (1987), it extended that reasoning to post-conviction proceedings in state court.
Most recently, in Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court held that counsel was not constitutionally required for civil contempt proceedings that resulted in imprisonment. The case involved an indigent father, Michael Turner, who was held in contempt five times for non-compliance with support obligations. On the fifth occasion, at which the mother and father were both unrepresented by counsel, the judge asked Turner if there was anything he wanted to say about why he was still $5,728.76 behind in his payments. Turner responded that, of his $50-a-week support order, he had tried to pay “a little bit here and there” but had gotten “back on dope,” and then was laid up for two months with a broken back. At the time of the hearing, he was “off the dope” and apologetic for his past conduct. He concluded: “I just hope you give me a chance. I don’t know what else to say. I mean, I know I done wrong and I should have been paying and helping her and I’m sorry.” Id. at 437. The judge found Turner to be in “willful contempt” and sentenced him to twelve months in the local detention center unless he was able to pay. While serving his sentence, Turner appealed with the help of a pro bono lawyer and claimed that he been unconstitutionally denied a right to counsel.
Writing for himself and four other Justices (Kennedy, Ginsburg, Sotomayor and Kagan), Justice Breyer applied the framework of 886Mathews v. Eldridge and Lassiter to determine what due process required. In the majority’s view, the nature of the “private interest that will be affected” militated strongly in favor of counsel because of the “loss of personal liberty” that was at stake. Id. at 445. However, two other factors—the risk of an erroneous decision and the nature of countervailing interests—cut against. In particular, the Court reasoned that the risk of error could be minimized by alternative procedural safeguards such as:
(1)notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status . . . ; and (4) an express finding by the court that the defendant has the ability to pay.
Id. at 447–48. The majority also emphasized a countervailing interest in avoiding an “asymmetry of representation” that would occur if the defendant had counsel, but the mother did not. That could “make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.” Id. at 447.
In balancing these interests, the Court held that, in general, the “Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is the subject of a child support order.” Id. at 448. However, in the absence of counsel, the Court ruled, the state must provide alternative procedures that ensure a “fundamentally fair” determination of the critical questions at issue. On the facts of Turner’s specific case, the Court held that, because Turner had neither counsel nor the benefit of an alternative procedure, and the lower court did not make specific findings about his ability to pay, his incarceration violated due process.
Responses to the decision were mixed. Some were highly critical. Georgetown Professor Peter Edelman, who chaired the District of Columbia’s Access to Justice Commission, told the ABA Journal, “I don’t think the Court understands what it’s like to go into court without a lawyer. It would be good for the whole lot of them to go spend the day in landlord-tenant court and see if they have the same view.”59 By contrast, Professor Benjamin Barton believed that it was “helpful that the court recognized that a lawyer is not the solution to every civil problem,” and that alternative procedures might be more cost effective.60
The Court’s unwillingness to recognize a right to counsel in civil matters has attracted criticism on several grounds. One line of critique 887challenges the results in cases such as Lassiter and Turner under the Court’s own analytical framework. From this perspective, the rationale for subsidized legal assistance seems particularly strong in cases like Lassiter, where crucial interests are at issue, legal standards are imprecise and subjective, proceedings are formal and adversarial, and resources between the parties are grossly imbalanced.61
Some commentators have argued for the broader recognition of a right to counsel in civil cases affecting fundamental rights. Under this line of analysis, access to legal assistance is necessary for access to the legal system; access to the legal system is necessary to realize equality before the law; and equality before the law is necessary to the legitimacy of our form of government.62 As the Supreme Court has itself recognized, the right to “sue and defend” is a right “conservative of all other rights, and lies at the foundation of orderly government.” Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). More specifically, legal assistance fosters certain values central to our concept of a just society. Not only does it serve the instrumental function noted in Lassiter of preventing erroneous decisions, but it also promotes self-respect and a sense of having one’s will counted in societal decisions.63 Many European countries have recognized as much.64 Indeed, other developed democracies have enshrined the right to counsel in civil cases and devote three to ten times more funding to civil legal aid than the United States.65
The right-to-counsel, or “Civil Gideon,” movement in the United States has gained some momentum. Reviewing the origins of the movement, Clare Pastore pointed to the ABA’s
historic resolution in 2006 endorsing the provision of ‘counsel as a matter of right at public expense to low income persons in . . . adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody. . . .’ Numerous state and local bar associations have endorsed the ABA resolution. . . .66
888Since then, Tonya Brito notes that “there have been impressive gains toward [the right to counsel] through legislation and court victories.”67
In 2017, New York City became the first city in the United States to enact legislation providing low-income tenants facing eviction with legal representation. In 2016, California put into force a 2009 state law establishing publicly funded counsel for poor litigants in cases about housing, child custody, conservatorship, and guardianship. In 2016, the Supreme Court of New Jersey held that parents have a right to counsel in adoption cases. . . . By 2018, eighteen right-to-counsel bills had been acted in fourteen states, and an additional eighty-four were pending in Congress and state legislatures.68
However, some commentators have expressed concerns about the movement’s aims.69 Could the right to counsel be kept within economically manageable limits? In a country that has declined to ensure adequate housing or health care for all its residents, should law be a higher priority? Suppose parties had a right to counsel, but, as is true in indigent criminal defense, legal assistance programs had nowhere close to adequate funding? Under such circumstances, if clients were unwilling to accept quick settlements, the programs would be unable to provide meaningful representation. As the history of legal services here and abroad makes clear, a right to legal counsel coupled with inadequate resources for implementation produce the illusion rather than the reality of effective assistance.
In response to such concerns, some commentators have noted that many European nations have recognized rights to legal services that are limited through eligibility criteria, sliding fee scales, and restrictions on fees recoverable by subsidized counsel. As discussion in Section C, Part 2 notes, legal aid programs in this country also screen cases to stay within their limited budgets. Similar standards could be established for a broadened right to civil legal assistance, or at least a right in certain categories of civil cases where crucial interests are at issue and the claimant has a reasonable chance of prevailing.
1.What is your view of Turner v. Rogers? If alternative procedures had been available, how effectively could defendants like Turner represent themselves? In establishing priorities for allocating free legal assistance, should lawyers consider the potential unfairness of having only one party aided by counsel?
8892.Would you support a Civil Gideon? If so, how would you define the types of proceedings in which counsel would be required? The ABA called for a right to counsel to protect “basic human needs.” How should that term be defined?
3.How much would it cost to fulfill the right to counsel? Brito states that the “ABA estimates that a right to civil counsel when basic human needs are at stake would cost approximately $4.2 billion in current dollars, or about 1.5 percent of total U.S. expenditures on lawyers.”70 On the other side of the equation, however, many studies suggest that providing attorneys for poor people can actually save money by preventing legally-induced harms that force people to turn to public assistance.71 Along these lines, the National Coalition for a Civil Right to Counsel estimated that the New York City law requiring counsel for indigent persons in housing cases would save $320 million through reduction in shelter expenses and avoidance of homelessness-related expenditures involving law enforcement and emergency medical care.72 Other studies have similarly found that investments in counsel yield positive economic returns by reducing costs associated with homelessness and domestic violence.73 If the evidence shows that providing counsel is a cost-effective investment, why don’t more jurisdictions do it?
Even if there is a positive return on investment, providing lawyers to those in need would require a substantial up-front cost. How should that cost be financed? Recommendations include: raising court filing fees with exemptions for low-income litigants; dedicating unclaimed payments from class action recoveries; and authorizing courts to impose financial penalties on defendants found liable for certain categories of consumer fraud or other misconduct. Other possibilities include imposing a “pay or play tax” on law firms that do not meet pro bono targets, or levying fines on lawyers for disciplinary violations.74 Would you support any of these proposals? How politically feasible are they? Are there other ways to finance the right to counsel?
4.As the Turner Court suggests, the debate surrounding individuals’ right to counsel is in part a debate about the degree to which having legal assistance affects case outcomes. On this issue, the evidence is mixed. As discussed above, most people with legal problems do not take them to 890lawyers, and even when cases do go to court, many people appear pro se.75 Represented litigants are more likely to win, but “the observed difference in case outcomes between attorney-represented and unrepresented members of the public varies widely across different kinds of civil justice problems and different studies of lawyers’ impact.”76
In a series of randomized trials, a team of researchers tried to empirically assess the impact of representation in different contexts. One much-discussed study tracked persons seeking assistance from the Harvard Legal Aid Bureau (HLAB) in their appeals of initial rulings that they were ineligible for unemployment insurance. In this study, one group of claimants was offered representation by HLAB, while a control group was not. Surprisingly, the authors found that “an offer of HLAB representation had no statistically significant effect on the probability that a claimant would prevail, but . . . the offer did delay the adjudicatory process.”77 By contrast, a study of eviction proceedings in state court found that represented clients prevailed twice as often as those merely provided with self-help training.78 Yet a third study of eviction proceedings in housing court found little difference in outcome between clients with truncated legal representation and those receiving full representation.79 In all these studies, the researchers were unable to conclusively identify what caused the results. They argued strongly, however, that randomized trials of the kind they used to conduct these studies are the only reliable method for evaluating legal aid programs, and that evaluations using less rigorous methods are nearly worthless.
Do you think it would be sound policy to discontinue subsidies for legal representation in unemployment insurance appeals cases based on the results of the first HLAB study? Should funders tie support of legal services organizations to rigorous outcome studies? Such studies are costly and difficult to conduct, and for understandable (though not especially laudable) reasons, some organizations have refused to allow outsiders to conduct randomized studies of their effectiveness. Randomized studies also have their own problems that critics have suggested undermine their utility. In particular, since they only measure the impact of an offer of legal representation, they do not account for the fact that many of those turned away in the randomized trial end up finding a lawyer elsewhere—thus 891confounding evaluation of outcomes. In light of the difficulty of empirical evaluation of lawyer impact, what should policymakers do?
Although efforts to establish a right to legal counsel in civil cases have been unsuccessful thus far, there has been a long tradition of philanthropic and governmental support for providing free legal services to the poor.80 By the turn of the 20th century, legal assistance programs were operating in about half-a-dozen cities, with funding from private charity and municipal subsidies. Program leaders generally viewed their mission as promoting social stability rather than social change. By demonstrating that justice was accessible through established means, many legal aid supporters hoped to undercut support for socialism, anarchism, and other left political movements. Efforts to attract funding, however, met with limited success. In 1919, Reginald Heber Smith’s Justice and the Poor reported a total of some forty organizations throughout the country, with only sixty-two full-time attorneys and a combined budget of less than $200,000. Many programs also had highly restrictive policies. Only the “deserving poor” were eligible for assistance and only for what lawyers considered “deserving” cases.81
The ABA subsequently appointed Smith to head its Standing Committee on Legal Aid, which began providing modest assistance to local offices. Bar leaders supported assistance on the grounds that it reassured the public of the fairness of legal institutions and increased respect for lawyers. However, many leaders also opposed substantial government funding because of concerns about the “socialization” of legal practice. By 1963, some 250 offices were providing civil legal services with a combined annual budget that amounted to less than two-tenths of one percent of the nation’s total annual expenditures for legal services and funded only 400 lawyers, about one for every 120,000 poor Americans.82
With the Johnson Administration’s War on Poverty came a major influx of governmental aid and a new reformist vision. In 1965, the Office of Economic Opportunity (OEO) began allocating the first federal funds for civil legal assistance programs, and a cadre of lawyers joined their staffs. In addition to traditional services, OEO programs encouraged a focus on law reform and political organizing. The consequences were 892quickly apparent, as legal aid offices achieved significant victories on consumer, welfare, housing, health, and related issues.
These victories, however, triggered a political backlash. Unhappy with its law reform efforts, the Nixon administration sought to dismantle the federal program. While it did not wholly succeed, it did manage to significantly restrict its activities. To provide greater political insulation for poverty law offices, Congress in 1974 established the Legal Services Corporation (LSC), with board members appointed by the President and confirmed by the Senate. To gain support from critics, the authorizing legislation prohibited Corporation-funded attorneys from engaging in lobbying, political organizing, and representation in certain controversial areas such as school desegregation, abortion, and military service. Under the new LSC charter, earlier OEO rhetoric of “law reform” and “social change” was also absent; emphasis had shifted to the more neutral goal of enhancing “access to justice.”
Further restrictions followed. The Reagan administration failed in its initial efforts to dissolve LSC, but subsequently succeeded in reducing its budget and restricting its permissible activities. Recipients of government funds could not, for example, represent most unauthorized immigrants, pursue cases involving gay rights, or initiate class actions except under very limited circumstances.
Beginning in the mid-1990s, the LSC also mandated that legal services programs must engage in a process of statewide planning to develop a comprehensive, integrated delivery system. Longstanding programs were no longer presumptively entitled to renewal of their funding. Rather, the LSC invited competitive bids and evaluated candidates based on their capacity to maximize access of eligible clients to timely, effective, and appropriate legal services.83
In 1996, Congress again restricted the LSC’s activities and reduced its budget by about a third to under $300 million. Among the most controversial of the 1996 restrictions Congress imposed on LSC funding recipients are set out below.
Omnibus Consolidated Rescissions and Appropriations Act of 1996: Legal Services Corporation
Section 504(a) None of the funds appropriated in this Act to the Legal Services Corporation for the provision of legal assistance may be used to provide financial assistance to any person or entity (which may be referred to in this section as a “recipient”)— . . .
893(2)that attempts to influence the issuance, amendment, or revocation of any executive order, regulation, or other statement of general applicability and future effect by any Federal, State or local agency;
(3)that attempts to influence any part of any adjudicatory proceeding of any Federal, State, or local agency if such part of the proceeding is designed for the formulation or modification of any agency policy of general applicability and future effect; . . .
(7)that initiates or participates in a class action suit; . . .
(11)that provides legal assistance for or on behalf of any alien, unless the alien is [lawfully present in the United States, or has applied to become a permanent resident, or is the spouse or parent of a U.S. citizen] . . .
(15)that participates in any litigation on behalf of a person incarcerated in a Federal, State, or local prison;
(16)that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation;
(17)that defends a person in a proceeding to evict the person from a public housing project if—(A) the person has been charged with the illegal sale or distribution of a controlled substance; . . .
Section 50. None of the funds appropriated in this Act to the Legal Services Corporation may be used by any person or entity receiving financial assistance from the Corporation to file or pursue a lawsuit against the Corporation.
———
One important but subtle point about the restrictions set forth in § 504(a), excerpted above, is that they do not simply forbid legal services providers from using LSC funds for prohibited activities. By its terms, § 504(a) prevents organizations engaging in these activities from receiving LSC funds, and thus, in effect, prohibits recipients of LSC grants from engaging in prohibited activities even if they use funds from non-LSC sources (i.e., individual donations, foundation grants, or state and local government funds). This restriction is known as the “program integrity” rule.
In the wake of the 1996 Act, a number of lawsuits were filed challenging many of its restrictions. Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), was brought by lawyers working for New York City LSC grant recipients, their clients, and contributors to their organizations. The plaintiffs challenged various restrictions, including 894the program integrity rules, on due process and First Amendment grounds. They argued that the restrictions unduly burdened the lawyer-client relationship and that they imposed unconstitutional conditions on the receipt of LSC grants. Finally, they challenged some of the restrictions by arguing that they discriminated against certain lawyer speech based on viewpoint. The court of appeals rejected all the challenges except the last one. While the court upheld the restriction on welfare-reform activities, because it banned lobbying and reform litigation on any side of the issue (and thus was viewpoint neutral), it struck down one provision of subsection (a)(16) that was “inescapably viewpoint-biased.” That provision permitted representation of welfare claims in suits for benefits only if they did not challenge a rule that led to the denial of benefits. On appeal, the Supreme Court affirmed in a 5–4 decision. In its decision, the Court stated:
The LSC and the United States . . . in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the government’s own interest.
The Obama administration repeatedly sought to repeal the 1996 restrictions on legal services attorneys’ activities. During the 2010 appropriations process, Congress lifted a prohibition on requests for court-awarded attorneys’ fees. It has refused to repeal the other limits. 84 In Obama’s second term, LSC funding initially went up, then dropped, with commentators noting a significant lack of resources in rural areas. 85 The total lack of attention to the legal services program in the 2016 presidential campaign quickly changed after the election of Donald Trump, who sought to defund LSC; 2017 funding was a paltry $5.85 per eligible person, less than Americans spent on Halloween costumes. 86 However, non-LSC funding for legal services programs has increased since Trump’s election such that the total amount of program revenue 895 increased to nearly $1.2 billion in 2018 (66 percent of which comes from non-LSC sources). 87
1.Although the court of appeals in Velazquez invalidated one funding restriction, dealing with welfare reform, it upheld the other restrictions, and legal aid grantees did not appeal that ruling. The Ninth Circuit rejected a similar constitutional challenge to the “program integrity” rules in Legal Aid Society of Hawaii v. Legal Services Corp., 145 F.3d 1017 (9th Cir. 1998). As stated above, the program integrity rules require LSC-funded organizations to maintain physical and financial separation from any “legally separate entity” pursuing activities prohibited by LSC regulations—essentially requiring legal aid organizations to maintain two offices, one funded by the LSC and the other with non-LSC funds. The question presented in the Hawaii case was whether those rules were unconstitutional conditions in violation of Rust v. Sullivan, 500 U.S. 173 (1991). Rust involved a challenge to federal regulations forbidding medical providers who received federal funds from counseling patients about abortion. The Rust Court held that these regulations did not impose unconstitutional conditions on receipt of the funds, because Congress may legitimately refuse to use federal funds to advocate or promote abortion. Similarly, in the Hawaii case, the court concluded that there was no constitutional violation because a legal services group was “not compelled to accept a subsidy from the LSC.” 145 F.3d at 1028. Therefore, any problems the restrictions caused for an LSC-funded attorney were a “consequence of that attorney’s decision to accept full-time employment with a LSC funded organization. If an attorney wishes to engage in prohibited activities, the attorney could work part-time at an unrestricted organization in certain circumstances or engage on his own time in restricted activities that do not involve the outside practice of law, such as lobbying.” Id. at 1029.
Does it seem right to you that lawyers should have to go to these lengths to work around the restrictions? The alternative would be to permit an LSC-funded organization to maintain one office but ensure that lawyers only engage in non-LSC activities with earmarked non-LSC funds. Would this be feasible?
The program integrity restriction, in fact, led some recipients to split their organizations; one part continues to receive LSC funds while the other part declines the funds in order to engage in restricted activities. The result has been that these offices purchase duplicate equipment and hire duplicate staff, with less money available to serve clients.88 Are such restrictions justified? Why or why not?
8962.Critics of the decisions sustaining the LSC restrictions raise several concerns:
It is, of course, true that legal aid clients are no worse off as a result of the restrictions than they would have been if the government had never provided funding. But that is often true in cases where the Supreme Court has found unconstitutional conditions; the point of the doctrine is to require the government to respect constitutional rights if it chooses to provide assistance. Once Congress decides to subsidize certain attorney-client relationships, it should not be permitted to undermine their effectiveness. Foreclosing strategies like class actions, requests for attorneys’ fees, or legislative advocacy often has that effect. In many jurisdictions, no non-federally funded organizations are available to pursue restricted activities.
Moreover, contrary to courts’ implication, the attorney-client relationship has long been recognized to serve crucial First Amendment values of expression and association. Current LSC restrictions undercut those values and compromise lawyers’ ethical obligations to serve their clients’ best interests. For example, it is generally advantageous for plaintiffs with similar claims to pursue them as class actions, since such collective efforts offer broader relief, higher stakes and visibility, and generate greater bargaining leverage. By foreclosing such strategies, LSC restrictions impair lawyers’ ethical obligations to provide effective representation and to exercise independent professional judgment about what that representation requires.89
Do you agree? How might defenders of the restrictions respond?
3.Do the above limits undermine ethical representation by LSC recipients? Do any of these restrictions raise constitutional concerns analogous to those underlying the Supreme Court’s ruling in Velazquez? Consider the following issues.
Section 504(a)(7) forbids LSC recipients from filing class actions, even if they believe that a class action will best serve the interests of their clients. Does this place recipients in violation of any ethical rules, such as:
Alternatively, does Rule 1.2 permit LSC lawyers to limit the scope of representation in accordance with the federal restrictions? Rule 1.2(c) 897provides that a “lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” When would client consent to the restrictions be necessary? If low-income clients have no alternative source of legal assistance, how meaningful is their consent? Would these ethical rules even apply, given that the federal legislation prohibits LSC-funded lawyers from taking on certain types of cases in the first instance?
While the legislation imposing the 1996 restrictions was pending, the ABA issued a Formal Opinion discussing the ethical issues they raise. See Formal Opinion 96–399 (1996). The Opinion concluded that legal services lawyers must significantly limit their representation, withdrawing from some cases, declining others, or warning potential clients, in order to maintain their federal funding, but that none of these limitations violates the Model Rules. Do you agree with this assessment?90
4.Legal aid attorneys inevitably confront a dilemma both in the initial selection of cases and in the determination of how much time and expense should be spent on any particular matter. On the one hand, to limit client assistance to only predefined “targeted” areas identified by the program is to ignore the immediate, personal aspects of the lawyer-client relationship that are basic to providing legal or any other social service. On the other hand, to provide full representation for each client would require either a staggering increase in available legal services or a system of triage in which most will go without service in order that a few may get what they need.91 How should this tradeoff be resolved?
5.In a classic article, Professor Stephen Wexler argued:
Poor people are not just like rich people without money. . . . In so far as the law is concerned, [financially secure individuals] lead harmonious and settled private lives. . . . Poor people do not lead settled lives into which the law seldom intrudes; they are constantly involved with the law in its most intrusive forms. For instance, poor people must go to government officials for many of the things which not-poor people get privately. . . . [P]oor people are always bumping into sharp legal things. . . .
Poverty will not be stopped by people who are not poor. . . . And poor people can stop poverty only if they work at it together. The lawyer who wants to serve poor people must put his skills to the task of helping poor people organize themselves. . . . If all the lawyers in the country worked full time, they could not deal with even the articulated legal problems of the poor. And even if 898somehow lawyers could deal with those articulated problems, they would not change very much the tangle of unarticulated legal troubles in which poor people live.92
In addition to organizing the poor, Wexler advocates informing them of their legal rights, and training lay advocates. Do you agree? If Wexler is right, what follows from his analysis about the structure of civil legal aid programs?
6.Picking up on the points made by Wexler, some commentators have questioned legal aid’s quality of representation and its strategies for client involvement and empowerment. In their view, the landmark litigation victories that many lawyers seek may have little concrete effect, given the post-judgment power relations of the parties, the difficulties of enforcement, and the possibility of legislative reversal. Research on poverty lawyering has also identified problems of professional dominance that disempower clients, particularly when advocates are of different class, race, and ethnic backgrounds. As Anthony Alfieri puts it: “What do progressive lawyers give to subordinated people? The conventional answer is rights. . . . What do progressive lawyers take from subordinated people? The answer is dignity: the values of independent action and speech.”93
In response to concerns about the undue dominance of lawyers, supporters of legal aid argue it is not clear that poverty lawyers are any more disempowering than nonlawyer organizers or other representatives who claim to speak on behalf of marginalized groups.94 To mitigate the potential for disempowerment, legal aid proponents recommend that poverty lawyers should target their resources and give priority to widely shared problems and collaborative, community-based responses. Clients should also have a meaningful voice in decisions about the allocation of resources, and programs should engage in systematic evaluation of their cost-effectiveness.95 By focusing on educational projects, self-help assistance, and aid to local organizations, legal services offices also can aid low-income groups not only in resolving individual problems but also in developing skills to address the structural causes of poverty.
7.Unless and until legal assistance is more widely available, are changes needed in adversarial norms? For example, should ethical codes include provisions such as those appearing in an earlier draft of the Model Rules that would have prohibited lawyers appearing against pro se opponents from “unfairly exploiting . . . ignorance of the law or the practices of the tribunal,” and “procur[ing] an unconscionable result”?96 After vigorous bar opposition, 899that provision was replaced with requirements in Rule 4.3 that lawyers dealing with an unrepresented adversary simply avoid implications that they are disinterested and make reasonable efforts to correct misunderstandings concerning their role. Are such requirements sufficient?
8.Though many applaud the LSC—and other providers of services for the poor—others criticize these services. Conservatives have made varied arguments against legal aid. Reacting against the legal services program’s early law reform agenda, some have complained that the program has been insufficiently responsive to poor people’s routine but pressing needs in order to pursue goals of greater interest to poverty lawyers, while others have asserted it is unfair to force taxpayers to subsidize indigent representation. Free-market defenders have objected to legal aid on the ground of efficiency. According to commentators such as Richard Posner, providing legal services in-kind rather than through income transfers encourages clients to overuse free services and forces lawyers to make often inaccurate judgments about which needs are most acute.97 Others claim that legal aid hurts the communities it purports to help. These critics charge that legal services lawyers encourage welfare dependency and broken homes through their divorce and government benefits work. They similarly suggest that defending deadbeat or dangerous tenants against eviction imposes costs on other non-litigious tenants in the form of increased rents and safety risks;98 and that preventing schools from expelling abusive students or enforcing sanitary ordinances against the homeless hurts poor communities, not the attorneys who claim to protect them. From this perspective, legal services “liberators” seldom confront the daily consequences of their advocacy; “abstract compassion” is the luxury of litigators who can “live in neighborhoods with more . . . coffee houses than drug dealers” and who can shield their own children from the educational disruption they perpetuate for others.99
Defenders of legal aid counter these critiques with a number of points. To argue that it is unfair to force taxpayers to subsidize legal services for indigent clients overlooks the multibillion-dollar subsidy already provided for non-indigent clients through tax deductions for legal services as business expenses. To assume that cash transfers to the poor would be more effective than direct provision of services ignores problems such as lack of information and collective needs that legal aid programs are meant to address. Moreover, at current governmental funding levels, which provide legal aid programs with less than $10 annually for every person below the poverty line, converting the LSC budget to income transfers scarcely seems promising.100 Similarly, proponents challenge critics’ complaint that poverty lawyers pursue politically driven lawsuits and hollow courtroom victories instead of 900individual client needs. About 80 percent of legal services cases involve matters that are handled short of litigation; most of these cases involve relatively uncomplicated family, landlord/tenant, income maintenance, and consumer matters.101
Defenders further argue that many criticisms are really objections not to legal representation per se, but to the underlying rights being vindicated, with lawyers’ help. It is, moreover, by no means clear that all of the cases critics cite reflect counterproductive advocacy. Opponents generally assume that the costs of defending such lawsuits will all be passed on to other poor people. But whether the landlord will in fact raise honest tenants’ rent because legal aid lawyers successfully fight evictions or force landlords to undertake expensive improvements depends heavily on context and local market conditions. Whether such consequences would be offset by other benefits is equally unclear, particularly since it appears that the cases that make it to trial are meritorious.102 Understaffed legal services offices have no reason to spend substantial scarce resources litigating the “marginal” or meritless cases that critics’ arguments invoke. In addition, as with the right to counsel discussed above, there is a growing literature arguing in favor of the cost-effectiveness of legal aid based on the multiplier effects of stabilizing the housing, jobs, and health care of low-income people, alongside reductions in public welfare costs.103 Finally, while acknowledging certain limitations of legal aid as a redistributive device, defenders emphasize its role in monitoring the fairness of existing redistributive programs and in enforcing recognized entitlements. For many impoverished clients, legal services are the only way to meet fundamental needs in areas such as medical care, housing, education, protection from domestic violence, and hazardous working conditions.
What position would you take in these debates over legal services? Consider your position in light of the following problems:
You chair a commission established in response to a report on unmet legal needs in Indiana. As in other jurisdictions, the report estimated that unmet needs totaled about thirty times the cases handled by the state’s 100 legal services attorneys; the state had only one attorney for 901every 7,650 problems experienced by low-income individuals.104 Of those seeking help, the report estimated than only three in ten would receive assistance from a legal services attorney due to insufficient resources; unrepresented parties appeared in over one-quarter of all civil cases (and a majority of litigants in domestic relations cases were pro se).105 Legal advice and referral hotlines could handle less than one-third of the calls they received, and certain groups were particularly underserved, such as the disabled, the elderly, the institutionalized, and immigrant populations. There were fewer than five pro bono lawyers available for every 1,000 low-income state residents.106
Among the report’s recommendations were: simplification of legal forms and proceedings, self-help support services in every courthouse, trained non-lawyer facilitators in libraries and social service offices, additional web-based and telephone assistance, further outreach to vulnerable populations, changes in bar ethical rules to encourage more “unbundled” limited scope representation by lawyers in private practice, and increased funding through mandatory minimum contributions from attorneys and unclaimed damages in class actions. Other possibilities include a tax on legal revenues and a sliding fee scale for clients who can afford to pay something but not the full cost of assistance.107
How would you evaluate these recommendations? Would a mandatory financial or hourly pro bono contribution from private attorneys make sense in light of the material on pro bono in Section C.4? What other strategies might you consider?
Your federally funded legal aid office, after its appraisal of client needs, has decided to target most of its available resources to housing reform, which it believes to be the most pressing issue facing the poor in its city. The office hopes to launch lawsuits attacking both the deteriorating condition of public housing stock and the semi-official tolerance of racial discrimination in public housing admissions. Lawyers also hope to work with a neighborhood organization seeking innovative ways to finance new housing projects, and to block developments that will reduce affordable residential units or increase environmental hazards.
For this reason, the office now turns away almost all prospective clients with non-emergency legal needs unrelated to housing. In addition, clients are now chosen partly on tactical grounds. For example, the office does not accept clients seeking admission to public housing if a family 902member has a history of violence. Once a client is accepted for representation, however, your office will handle non-housing-related legal problems as well, because you and the other attorneys believe that only in this way can you achieve an acceptable attorney-client relationship.
The mother of a teenage boy with mental illness has asked your program to represent her in efforts to place her son in a special educational program. The boy has been expelled from public school twice as a result of assaults on classmates. The mother insists that the incidents were provoked by racist comments (the boy is Latino). After learning the reason that your office cannot handle her case, she returns and indicates that she has now applied for admission to public housing. Other attorneys report similar experiences, and express discomfort about the possibility that the office’s targeting policy is too manipulative toward would-be clients.
Related concerns have surfaced about caseload restrictions. Some potential clients have questioned the meaning and appropriateness of the ban on representing families with a history of violence, since it penalizes “innocent” as well as “guilty” members. A local women’s group has also complained about the office’s refusal to handle divorce and domestic violence cases. In its view, the lawyers’ interest in cutting-edge litigation and community development work has come at the expense of poor women who remain ineligible for benefits and trapped in abusive relationships because of the absence of legal assistance. Another community group proposes broadening the kinds of cases the office will accept, but conditioning assistance on clients’ willingness to provide a specified amount of community service, such as helping with neighborhood cleanup and renovation or providing services to disabled elderly residents.
The staff and board of the office are meeting to reconsider caseload priorities. What is your recommendation?108
While legal services practitioners have focused on representing individual clients, “public interest lawyers” have focused on changing social policy in ways that address the problems facing broad classes of underrepresented people or interests. In this sense, public interest law has sought to advance “access to justice” though social reforms that widely affect the quality of people’s lives.
Although the term “public interest law” is fairly new, the concept has its roots in earlier social movements including legal services for the poor, 903civil liberties, and civil rights.109 The growth of an organized civil liberties movement began during World War I, when a small group of pacifists founded the American Union Against Militarism. It eventually spun off an organization that became the American Civil Liberties Union (ACLU). Activities quickly broadened to include free speech and eventually to reproductive rights and anti-discrimination strategies. So too, America’s first major civil rights organization, the National Association for the Advancement of Colored People (NAACP), was founded in the early twentieth century by a small number of liberal activists. A brutal 1908 race riot in Springfield, Illinois prompted a group of predominantly white reformers to form an association that would focus on racial discrimination.110 In 1939, the association spun off the NAACP Legal Defense Fund as a separate organization. Over the next several decades, the Fund orchestrated a systematic legal campaign against racial segregation and subordination. In the process, the Fund broadened its agenda to include related issues such as death penalty litigation. Other organizations, including the Lawyers’ Committee for Civil Rights Under Law and the National Lawyers Guild, joined in the effort. These civil rights and civil liberties organizations served as models for other legal reform associations.111
During the late 1960s and early 1970s, a rise in political activism, together with a large increase in foundation founding, gave birth to new “public interest” legal groups. Judicial and legislative initiatives further encouraged this development. Test-case litigation became a more effective strategy as courts began liberalizing doctrines regarding ripeness, standing, and sovereign immunity, and as Congress began authorizing fee awards to “prevailing parties” in certain civil rights, consumer, and environmental cases.
Under the definition put forth by the Council for Public Interest Law (now the Alliance for Justice, a coalition of liberal public interest organizations), such organizations qualified as “public interest” if they were tax-exempt nonprofit groups that employed at least one attorney and devoted at least 30 percent of their total resources to the legal representation of previously unrepresented interests on matters of public policy.112 By that definition, in the 1960s, there were approximately 904twenty-three public interest organizations with less than fifty full-time attorneys in the entire nation. By the 1990s, there were over 200 organizations with more than 1,000 lawyers, and by 2006 (the most recent year for which data is available), under a more inclusive definition that encompassed government-funded legal services, there were over 1,000 organizations with annual budgets ranging from a few hundred thousand to over a hundred million dollars.113 In addition, a substantial number of private firms that did not qualify for tax-exempt status devoted a major portion of their work to public interest representation. Although the percentage of lawyers engaged in full-time public interest work is quite low, under 2 percent, their influence is amplified by partnerships with private practitioners working for no fees or reduced fees.114
Beginning in the 1970s and 1980s, conservative legal organizations also formed to broaden the interests represented—and to contest the definition of public interest law. Groups such as the Washington Legal Foundation, the Rocky Mountain Legal Foundation, the Center for Equal Opportunity, and the Southwestern Legal Foundation have waged often successful campaigns against affirmative action, gun control, restrictions on property rights, small-business regulation, and—perhaps ironically—subsidized legal services for the poor.115 The Becket Fund for Religious Liberty, for example, has litigated high-profile challenges to the Affordable Care Act on behalf of religious objectors, including a landmark victory in Burwell v. Hobby Lobby, 573 U.S. 682 (2014). Although these organizations operate with tax-exempt status, they often fall outside the Alliance for Justice’s definition because they take some positions that are already well-represented by business interests.116 However, they qualify under definitions that are more inclusive, which encompass any group that seeks to use law in the service of social causes.117
905The appropriate role and meaning of public interest law are matters of longstanding dispute. The conventional justification for public interest law rests on the failure of current political and market structures to take adequate account of the concerns of unorganized, diffuse, or subordinate groups. Where transaction costs in organizing are high, and parties have inadequate resources or small individual stakes in representation, the rationale for public interest advocacy is greatest. Yet this rationale raises as many issues as it resolves. Surely underrepresentation does not of itself qualify a legal position as being “in the public interest.” For example, few individuals would apply that label to an organization of pedophiles who sought to eliminate prohibitions on child sexual abuse. If the concept of the public interest presupposes some reference to widely shared values or socially defensible criteria, how should these be determined? In the absence of adequate funding for full representation, who should decide which interests should be heard and how loudly? On what basis should such decisions be made? To whom are public interest lawyers accountable? Consider those issues in light of the following excerpts.
Scott L. Cummings, “The Pursuit of Legal Rights—and Beyond”
59 UCLA Law Review 506, 519–28 (2012).
At the outset of the public interest law movement, proponents asserted its definition in the language of market failure. Handler and his colleagues defined a public interest law “activity as one (1) undertaken by an organization in the voluntary sector, (2) that primarily involves the use of legal tools such as litigation, and (3) that produces significant external benefits if it is successful in bringing about change.” . . . For Gordon Harrison and Sanford Jaffe, the Ford Foundation program officers who designed and executed the foundation’s initial public interest law funding initiative (and were some of the first to use the term), public interest law was “the representation of the underrepresented in American society.” . . .
This definition came under attack from two directions. . . . Conservatives argued that the concept of underrepresentation was politically contingent and changed over time. Whose interests were more underrepresented? Criminal defendants or crime victims; environmentalists (backed by powerful groups like the Natural Resources Defense Council and Sierra Club) or small business owners; minorities who benefited from affirmative action or poor whites who received no preferences? Whether one agreed with the conservative framing, it highlighted a fundamental tension in equity conceptions of public interest law: On contested issues of public policy, one group’s benefit could be construed as another’s burden .
906As conservatives challenged the meaning of public interest law from the right, critics on the left challenged its practice and offered new theories to supplant what many viewed as the outmoded and politically ineffective model of litigation-centered reform embodied in the conventional definition of public interest law . . . .
As the critiques of public interest law have made clear, it is not possible to define “external benefits” or “underrepresentation” in an absolute sense that is applicable across different contexts and over time. But this does not necessarily lead to the extreme relativistic point—that the “public interest” in public interest law is simply in the eye of the beholder—that some conservative critiques of public interest law would suggest. In this vein, it is worth recalling that a key force behind the early mobilization of conservative public interest law organizations was the Chamber of Commerce, which—urged on by soon-to-be-Justice Louis Powell—sought to counter the rising influence of liberal groups in court by promoting conservative counterparts that would appropriate the form and label of public interest law. The manipulation of terms for the advantage of powerful groups does not mean that such terms apply equally by virtue of mere invocation. Rather, it should cause us to scrutinize the labels more carefully.
Toward this end, [I would] reframe the core element of contemporary public interest law in terms of relative disadvantage. Public interest law, as a category of practice, would thus be used to describe legal activities that advance the interests and causes of constituencies that are disadvantaged in the private market or the political process relative to more powerful social actors. Disadvantage, in this sense, relates to the resources (money, expertise, social capital) that a constituency may mobilize to advance individual or collective group interests. I draw attention to the relative nature of a constituency’s disadvantage since disadvantage is, at bottom, deeply situational—shaped by power inequality between rival constituencies. This framing suggests that it is possible to identify the constituencies served by different organizations, in different cases, and then to assess the power differential between them. It does not claim that this is calculation is easy—or even always possible. But it does point toward a metric—power—that can provide a basis for distinguishing which among competing causes might legitimately lay claim to the public interest.
The first type of disadvantage is basic market inequality, in which individuals, despite suffering a legal harm, are blocked from legal redress because they are too poor to pay for a lawyer (and there are no viable contingency or fee-shifting arrangements available). Public interest law responds to this type of disadvantage by providing no-cost or low-cost services to expand the entry of the poor into the legal system on an individual, case-by-case basis. Call this the access dimension of public interest law. . . .
907Market inequality maps onto, although it is not always coextensive with, forms of political inequality as well, which leads to the second (and more controversial) type of disadvantage: that of social groups or constituencies hindered in advancing collective interests through political channels. Several forms of such structural disadvantage continue to exist, despite important social gains, including disadvantage based on poverty, minority status, discrimination, and impediments to collective action. Members of disadvantaged groups have historically used American-style public interest law, particularly court-based litigation, to leverage policy gains that could not be effectively achieved through majoritarian politics. Thus, in the U.S. context, classic areas of public interest litigation have included welfare rights litigation on behalf of the poor, civil rights litigation on behalf of communities of color, and environmental and consumer litigation on behalf of those diffuse interests. Call this the policy dimension of public interest law.
A key feature of these types of public interest law activities is that, unlike standard access lawyering, they are oriented toward the enforcement and reform of laws and institutions that affect broad social groups. Accordingly, they inevitably clash with adversaries who hold different policy views: civil libertarians versus defenders of religious rights; environmentalists versus developers; consumer advocates versus business interests. Groups on both sides of these policy disputes deploy law to advance their aims. Which is public interest law? Focusing on relative disadvantage would frame the policy dimension of public interest law as encompassing advocacy on behalf of constituencies who seek to mobilize law to make up for their relative lack of political power to move policy in legislative arenas. This calculus would require looking at the nature and depth of a group’s disadvantage vis-à-vis those against whom that group seeks to mobilize. This, in turn, would require attending to deeply entrenched and persistent forms of inequality based on poverty, race, national origin, gender, sexual identity, and other grounds. It would, on the other side of the political equation, lead us to ask whether proponents of public interest law legitimately pursue policy change on behalf of the less powerful—or whether they cynically invoke the banner of dispossession to mask the reality of privilege.
From this vantage point, public interest law would as a general matter include groups seeking to use legal means to challenge corporate or governmental policies and practices. This definition would encompass activities on both sides of the political spectrum that legitimately advance disadvantaged interests, but exclude lawyering on behalf of existing structures of power. It does not, in the end, suggest that all claims asserted by less powerful groups necessarily advance a normative conception of the public interest to which all segments of society should subscribe. Rather, it asserts that the public interest is served when constituencies that genuinely face greater barriers to influencing political 908decisionmaking because of their less powerful status gain meaningful avenues to assert their claims through law.
Building on [the original] definition in this way does not avoid the boundary questions that inevitably and inescapably arise. To the contrary, it asks hard political questions. Where should we locate certain plaintiff-side lawyers, who might use law on behalf of individuals (accident victims, consumers, or investors) to challenge systematic practices by corporate actors (insurance companies, product manufacturers, or corporate insiders) but who do so in the pursuit of private enrichment instead of political reform? Or how should we think about libertarian groups that might select cases on behalf of sympathetic and relatively disadvantaged groups as a means to build deregulatory precedent designed to advance a broader pro-business agenda that redounds to the benefit of powerful corporate financial patrons? Similar questions might be posed about some Religious Right organizations, which use the backing of politically influential Christian-denominated churches in the pursuit of a wider role for religion in public life (which may, in turn, curtail the rights of religious minorities or religiously disfavored groups, like gays and lesbians). Or we might ask how to define government lawyers, who may, in some instances, mobilize the power of the state to validate the repression of minority groups while, in others, might use their resources to advance minority interests? No definition of public interest law can definitively answer these questions based on neutral principles—but that does not mean that the questions should cease to be asked.
Scott L. Cummings & Douglas NeJaime, “Lawyering for Marriage Equality”
57 UCLA Law Review 1235, 1299–1310, 1317–18, 1327–31 (2010).
[Cummings and NeJaime detail the two-decade long effort by LGBT movement lawyers at Lambda Legal, the ACLU, and the National Center for Lesbian Rights (NCLR) to keep the issue of same-sex marriage out of the courts because of concern that the results of a positive legal case would be put to the public in a ballot initiative that advocates believed they could not win. After San Francisco Mayor Gavin Newsome began issuing marriage licenses in 2004, Christian Right groups led by the Alliance Defense Fund (ADF) sued to block the marriages and the case wound up in the California Supreme Court, which issued a sweeping decision (In re Marriage Cases) affirming the constitutional right under state law of same-sex couples to marry. As anticipated, however, opponents of same-sex marriage put the issue to the voters, who narrowly passed Proposition 8, which amended the California Constitution to limit marriage to unions of heterosexual couples. The California Supreme Court upheld Proposition 8.]
909[Immediately thereafter,] another lawsuit was announced—not by movement lawyers, but by legal elites, and ideological opposites: Ted Olson, who represented George W. Bush in the 2000 recount and then served as his solicitor general, and David Boies, a prominent trial lawyer who represented Al Gore in the 2000 recount. On May 27, 2009 (the day after the Strauss court ruling), Olson and Boies announced that they had filed a federal lawsuit on behalf of two California same-sex couples, arguing that Proposition 8 violated the federal equal protection and due process guarantees. The case was orchestrated by Los Angeles political strategist Chad Griffin, who had worked on Bill Clinton’s 1992 presidential campaign and then ran a foundation for filmmaker and liberal political activist Rob Reiner. A mutual friend put Olson in touch with Griffin, who selected the plaintiffs and set up the American Foundation for Equal Rights (AFER) to fund the litigation. Olson’s firm, Gibson Dunn & Crutcher, agreed to take the case on a “hybrid” fee arrangement in which it would donate the first $100,000 worth of services and then collect “flat fees for the various stages,” ultimately amounting to millions of dollars. Olson then brought in Boies. . . .
For movement lawyers, the decade of advocacy around the issue of marriage equality in California ended in irony: excluded from the “trial of the century” they had so vigorously fought to oppose, and forced to focus on the political work of reversing Proposition 8, which they had so clearly seen and attempted to avert. It was not a decade without movement miscues, but the overarching story was one of movement lawyers struggling to protect their incrementalist agenda from being derailed by activists and other lawyers who wanted to move faster, on one hand, and marriage equality opponents, on the other. In the end, that strategy was only a partial success. The movement’s comprehensive domestic partnership victory was overshadowed by Proposition 8. Perry [v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011) (invalidating Proposition 8)], too, asserted a fundamental challenge to the movement, risking a negative decision by the U.S. Supreme Court despite providing some positive publicity. . . . Yet in the end, while their work continues in other crucial venues, movement lawyers have been largely relegated to the sidelines in Perry, watching the seemingly inexorable march of marriage equality toward the Supreme Court—hoping for the best, but planning for the worst. . . .
1.Constructing the Agenda: The Path to Marriage
. . . . Throughout the 1990s and into the 2000s, there was intense debate within the LGBT community about whether embracing marriage meant assimilating to heterosexual norms, with some prominent marriage critics arguing that the LGBT community should stand for diverse family arrangements. . . .
In California, the marriage debate played out in the contest over the meaning of domestic partnership and its relationship to marriage. Although advocates generally viewed marriage as a long-term movement 910goal and worked assiduously toward its achievement, there was genuine disagreement about whether marriage should be the exclusive objective, supplanting other legal statuses such as domestic partnership. This disagreement was evident in the initial push to pass a statewide domestic partnership registry . . . in 1999. Although some marriage advocates had already begun to view domestic partnership as a “stepping stone” toward marriage, others saw domestic partnership as an end in itself—a distinct system of legal protections that would make sense for those for whom marriage was undesirable or inapplicable. . . .
Outside the movement, the ferocity of opponents’ efforts to deny marriage rights to lesbians and gay men had the effect of heightening its importance as the ultimate symbol of LGBT equality. . . . Because same-sex marriage opponents were actively staking out marriage as the right to be denied, the LGBT rights movement responded by turning more of its attention to marriage. In addition, . . . marriage was becoming the focal point of legal and political struggle whether movement lawyers wanted it or not. Accordingly, advocates embraced marriage, in part, as a way of seizing control of the issue, shaping the terms of the debate, and maximizing opportunities for success.
External funding considerations also influenced the primacy of marriage. As marriage equality emerged as a powerful national issue, philanthropic foundations began directing increasing resources for marriage-related advocacy, which allowed LGBT rights organizations to devote more attention to the issue.
2.Controlling the Tactics: Litigation Triggers and Movement Responses
. . . .Contemporary social struggles often feature opposing movements reacting to one another. The California marriage equality movement, opposed by a well-organized and well-funded Christian Right countermovement, is an illustrative case. . . .
In the Marriage Cases, ADF acted only after San Francisco Mayor Newsom unilaterally decided to issue marriage licenses. ADF thus seized upon an opportunity that, from the vantage point of movement lawyers, was unpredictable and unwanted. Movement lawyers therefore found themselves litigating marriage equality at a time they did not choose and in a procedural posture they did not desire—although once Newsom made the decision, the lawyers expressed support and sought to use it strategically to promote public education around the legitimacy of marriage for same-sex couples. While lawyers had, up to that point, succeeded in controlling the affirmative litigation agenda, Newsom’s unforeseen decision undercut that control and set off a chain of events that led to three California Supreme Court decisions: the first enjoining Newsom’s issuance of marriage licenses, the second declaring a right to marry for same-sex couples, and the third upholding Proposition 8. While the movement lawyers successfully litigated the issue of marriage equality at the California Supreme Court, their earlier strategic decision 911regarding timing in California proved correct: The judicial victory was quickly taken away by constitutional amendment. . . .
Just as movement lawyers could not prevent Newsom from issuing marriage licenses, they ultimately could not control private lawyers willing to represent constituents eager to litigate. Preventing private lawyers from filing suits inconsistent with movement lawyer goals has been a long-standing issue across different litigation campaigns. Historically, the concern has been about nonmovement lawyers, lacking the sophistication and big-picture perspective, taking cases for a fee that could result in negative precedent undermining the impact litigation campaign. . . .
However, the second instance of private attorney intervention—the Perry case—was much different. There, control over litigation strategy was wrested not by smaller-scale private attorneys, as in . . . [earlier cases,] but by legal titans (and large-firm attorneys) Olson and Boies, acting at the behest of an activist client with the resources to pay for the best counsel money could buy and the hubris to disregard the collective judgment of the movement lawyers. . . .
5.Beyond (But Not Without) Litigation
. . . . There are two important implications of [the California example]. First, the California marriage equality case suggests that the scholarly focus on litigation as the social reform vehicle-of-choice for movement lawyers is outmoded. Contemporary legal advocacy in the marriage context does not fit the top-down, litigation-centric framework developed to address the civil rights campaign of the mid-twentieth century. This finding should make us rethink the appropriateness of the conventional emphasis on litigation in other advocacy contexts and investigate the degree to which the multidimensional model of advocacy. . . . To the extent that lawyering in other fields embraces multidimensionality, it should reinforce the rejection of theories that focus exclusively on litigation in favor of a more nuanced scholarly approach.
However—and this is the second point—it is important to emphasize that moving beyond the focus on litigation is not to diminish its importance as a movement strategy. . . . It may well be of limited efficacy by itself, but when strategically deployed in tandem with organizing, political advocacy, and public education campaigns, it is an important tool. . . . And, as the affirmative litigation in Vermont and Massachusetts highlights, it was not simply that movement lawyers disdained litigation, but instead that they held a well-researched view that in the California context it would produce negative movement results if used prematurely. . . .
Even if one credits this progress, a distinct criticism of the movement still remains: that the focus on achieving marriage as a legal right—waged by relatively well-off, mostly white, elite-educated lawyers in 912relatively well-resourced organizations—may have had the effect of de-radicalizing the movement and narrowing the field of possible alternatives within the broader arena of LGBT activism. This is a legitimate concern—outside the domain of backlash—that we cannot address systematically here; however, we do offer two observations. First, there is evidence that the push for marriage created some political space for alternatives like domestic partnership, which were made to appear more moderate by comparison. This may not be precisely what critics of marriage have in mind, but it suggests that there might be some broader benefits of the marriage equality movement. Second, the critique of rights-based strategies must always be evaluated in light of the question: As opposed to what? In the LGBT rights context, it is worth asking what alternatives were politically possible and how the marriage equality movement interacted with, and potentially negated, those options.
1.Is the debate over the meaning of “public interest law” important? What turns on whether legal organizations are able to claim that label?
2.In the excerpt above, Cummings argues for a definition of public interest law that turns on the “relative disadvantage” of the constituency on whose behalf legal claims are made. Is that a helpful reframing? Does evaluating public interest law in relation to power differentials between competing social groups help clarify which groups are worthy of support? What other ways might you frame what counts as public interest law?118
3.In the marriage equality campaign in California, should David Boies and Ted Olson have been more deferential to leaders of the gay rights community?
4.Do you think the LGBT movement lawyers were right to try to avoid litigation for so long? Was that what the community wanted or what they thought was best? Does it matter? How do subsequent events—particularly the movement’s success in persuading the Supreme Court to establish the right of same-sex couples to marry in Obergefell v. Hodges, 135 S. Ct. 2071 (2015)—affect your view?119
5.In reflecting on movement lawyering, Susan Carle and Scott Cummings note that “even within a particular social movement, there are conflicts over how to frame the ultimate movement goals and which strategies to pursue. . . . Movement lawyers have to make representational choices in the context of these disagreements and thus inevitably take sides in intra-movement debates over what ends to pursue and the appropriate means for doing so.”120 From this perspective, lawyers seeking to weigh into social 913movement efforts invariably confront difficult questions: “What does it mean to represent a movement? Who has organizational or individual standing to speak legitimately on a movement’s behalf? How do lawyers select among conflicting movement viewpoints about goals and strategies? And what happens when there is only a weak or even nonexistent movement infrastructure?”121 How would you answer these questions?
6.As the debate around the same-sex marriage highlighted, public interest litigation raises concerns from all points on the political spectrum. Conservative objections build on a long tradition of challenges to judicial activism, but they also direct particular opposition to public interest lawyers and lawsuits. Legal strategies that avowedly aim at restructuring institutions or redistributing resources have drawn fire on the ground that courts lack the competence or accountability for such a role. According to this line of criticism, such efforts invite rule by self-appointed representatives of the “public interest” who do not in fact reflect its concerns, and an “imperial judiciary” that does not have the necessary training, institutional familiarity, and enforcement mechanisms.122
Such arguments have prompted responses on several levels. As defenders of public interest advocacy note, it is not inconsistent with democratic principles for the public to delegate certain functions to non-majoritarian processes. Such a delegation is particularly appropriate to protect the needs of “discrete and insular minorities,” or diffuse majorities that lack resources to organize in a political system increasingly captive to well-financed interests.123 Courts can play a critical role in enforcing constitutional principles that other branches of government fail to vindicate.
Moreover, judicial oversight is not necessarily inconsistent with democratic authority. Public interest work often focuses on lobbying or on legal strategies designed to enforce the legislative intent underlying statutory guarantees. In many contexts, public interest organizations increase accountability in governmental policymaking by providing review that is otherwise absent. For example, such groups provide a crucial check against the capture of agencies by the groups to be regulated. Elected representatives often lack the time, information, and technical expertise to supervise implementation of statutory mandates. Where courts face similar limitations in public interest litigation, they can rely on special masters or broker settlements that take account of all the interests at issue, and involve participants in the monitoring effort.124
9147.While conservative critics worry that public interest law vests too much power in lawyers and courts, progressives worry that it takes attention away from more effective political mobilization. From their perspective, activist attorneys have placed too much emphasis on litigation and formal rights and have diverted efforts from the political organizing necessary to make such rights meaningful. In a landmark discussion of this issue, Harvard professor and longtime legal services activist Gary Bellow argued:
[T]he problem of unjust law is almost invariably a problem of distribution of political and economic power; the rules merely reflect a series of choices made in response to these distributions. If a major goal . . . is to redistribute power, it is debatable whether the judicial process is a very effective means toward that end. . . . There is generally not much doctrinal judicial basis for adequately dealing with such problems, and lawyers find themselves developing cases whose outcomes are peripheral to the basic issues that these problems raise. Secondly, “rule” change, without a political base to support it, just doesn’t produce any substantial results because rules are not self-executing; they require an enforcement mechanism.125
Too often, public interest lawyers lack resources to monitor compliance with test-case decrees and some defendants, particularly governmental institutions (such as prisons, schools, or mental hospitals), lack funds for adequately implementing judicial remedies. Decisions that lack public support are also vulnerable to statutory reversal or judicial retrenchment. According to this line of argument, the achievement of formal rights and procedural justice may leave intact a system that is substantively unjust. Public interest lawyers, it is claimed, continue to place undue reliance on doctrinal “victories” because their funding, credibility, and professional reputations depend on such visible achievements and because neither their professional nor personal backgrounds adequately equip them for grassroots organizing. In too many cases, attorneys do not empower clients to create the political and organizational structures necessary to challenge their subordination but instead only minister to its symptoms.126
In responding to such concerns, defenders of public interest lawyers have emphasized that litigation is not their sole focus. Much law reform activity serves multiple purposes and often helps raise public awareness, increase political leverage, mobilize communities, or broker internal reform efforts.127 In recent decades, the increasing conservatism of the courts and stricter notice and standing requirements have prompted most public 915interest groups to rely less on litigation and more on lobbying, education, organizing, counseling, economic development, and related community-lawyering strategies. For many underrepresented groups, litigation has functioned most often as a threat that confers bargaining leverage in out-of-court settings, or as a catalyst for political action and organizing efforts. Bellow himself often acknowledged the strategic potential of litigation, and commentators such as Anthony Alfieri and Scott Cummings have documented its importance as a background threat and organizing tool in community development struggles.128 In short, effective public interest advocates have learned to rely on multiple strategies that focus on long-term change and that enlist and empower clients in the struggle to achieve it.
8.A final set of concerns raised by public interest law involves issues of conflicts and accountability. The more unorganized the class, the fewer the constraints on counsel. In critics’ view, lawyers who lack accountability become indistinguishable from the government official whose policy they often challenge. As one has put it: “How are [these attorneys] to succeed where government has failed? Bigger experts? Bigger hearts?”129 In what sense can these lawyers claim to be more representative of the public than elected officials?
Two of the trustees of your environmental organization have asked you to challenge their city’s plans to construct a baseball stadium on the only site that planners believe is economically feasible. The proposed stadium is necessary to attract a major league team, but its construction on that site would threaten crucial wetlands and an endangered wildlife habitat. If you file suit, you may be able to cause sufficient expense and delay to convince the team’s owners to relocate in another city. Although you share the trustees’ objections to the proposed development, you worry about the effects of opposition on the city’s racial minorities and on your group’s reputation as elitist and insensitive to such concerns. Various civil rights coalitions support the stadium as a way to increase inner-city jobs, expand tax revenues, build morale, and assist minority-owned businesses. Under the proposed plans, minority contractors, vending services, and professional firms (including lawyers, engineers, and architects) would receive a substantial share of the work connected with the stadium.
When you raise your concerns with your organization’s board, the two trustees respond that your organization’s mission is to protect environmental interests; it is up to the civil rights coalitions to address 916minority needs. As one individual puts it, “[W]ildlife has fewer and fewer places to go and paving over wetlands is an unacceptable way of providing cheap development sites.”130 The legal staff of your organization, however, feels that this is the wrong development plan to resist, and that they should spend scarce resources fighting toxic plant sites where their mission would be aligned with minority communities and other environmental justice organizations. How do you proceed?
The public interest law and legal services models, explored above, have been built around full-time staff lawyers who devote themselves exclusively to their cause. These models have long been supplemented by another in which private lawyers, who spend most of their time representing paying clients, volunteer a portion of their time to provide free services to clients or causes in need.
Lawyer voluntarism has deep professional roots. One primary way that “learned professions,” including law and medicine, distinguish themselves from business is by emphasizing their commitment to public service. Thus, the ABA Committee on Professionalism entitled its widely-publicized report “ . . . In the Spirit of Public Service.”131 The American bar has a longstanding tradition of providing assistance pro bono publico (“for the public good”)—or “pro bono” for short. This concept encompasses work provided free or for a reduced fee (also referred to as “low bono”) for a wide range of organizations and individuals, including poor people, nonprofit organizations, bar associations, civic groups, and friends, relatives, or personal employees of lawyers or their clients.
Although the bar has long supported pro bono in principle, its commitment in practice has been less consistent. As the readings below note, a wide gap remains between the rhetoric and reality of pro bono service. According to the most recent ABA survey, just over half of American lawyers performed pro bono service. Of those who did, the average lawyer provided over sixty-five hours of direct pro bono service to persons of limited means (or organizations that support them) per year. 132 Other research has shown that the distribution of pro bono hours is bimodal with private lawyers in solo practice and the largest firms (over 250 lawyers) doing the most. 133
917Rule 6.1 provides that a lawyer “should aspire to render at least (50) hours of pro bono publico legal services per year” and should provide a “substantial majority” of such services to “persons of limited means” or to organizations that assist such individuals. But the Comment to this Rule makes clear that it “is not intended to be enforced through disciplinary process.”
Efforts by some courts and bar leaders to require a minimum contribution of assistance have provoked broad resistance. The ABA Ethics 2000 Commission rejected proposals to make pro bono work mandatory and recommended simply that Rule 6.1 include a statement in the Comment that “[e]very lawyer has a professional responsibility to provide services to those unable to pay.”
Reform efforts at the state level have followed a similar pattern. According to ABA data, by 2017, sixteen states had a version of Rule 6.1 suggesting fifty hours, eighteen specified no amount, nine specified between twenty and thirty hours, two had other standards (with Virginia asking lawyers to devote 2 percent of professional time), while six did not adopt any pro bono rule.134 Some states suggested a specific financial contribution, ranging from $250 to $750 or 1 percent of taxable income. Others encouraged contributions without specifying an amount, and a third group did not suggest any financial contribution. Seven states (Florida, Hawaii, Illinois, Maryland, Mississippi, Nevada, and New Mexico) required lawyers to report their pro bono contributions, eight rejected mandatory reporting, and eleven had voluntary reporting systems. Of states with mandatory reporting, compliance rates ranged from between 35 to 99 percent.135
Whether courts or bar associations should do more to foster charitable contributions remains a matter of ongoing debate. The following selection offers an argument for greater pro bono commitments.136
Deborah L. Rhode, Access to Justice
145–84 (2004).
The provision of assistance “pro bono publico” often expresses what is most admirable in the legal profession. But not often enough. Over the course of their careers, many lawyers contribute hundreds of unpaid hours to causes that would otherwise be priced out of the justice system. Some lawyers also give significant financial support to legal services 918programs. Yet the majority do not. Most lawyers make no contributions, and the average for the bar as a whole is less than half an hour a week and fifty cents a day. Moreover, much of what passes for “pro bono” is not aid to the indigent or public interest causes, but either favors for friends, family, or clients, or cases where fees turn out to be uncollectible. The bar’s pro bono commitments are, in short, a reflection of both the profession’s highest ideals and its most grating hypocrisies. . . .
How best to reduce the gap between professional ideals and professional practice has been the subject of longstanding debate but little data. To help fill the void, the discussion that follows reviews findings from my own recent study: the first comprehensive national survey of the factors that influence lawyers’ pro bono work. . . .
The Rationale for Pro Bono Responsibilities
The rationale for pro bono work rests on two central claims. One involves the value to society of addressing unmet legal needs. A second justification involves the value to lawyers, individually and collectively, of such charitable contributions. The first argument begins from the premise that access to legal services is a fundamental interest. That claim . . . is that inadequate legal assistance jeopardizes individual rights, compounds other social inequalities, and undermines America’s commitment to procedural fairness and social justice.
A second rationale for pro bono service rests on the benefits to those who provide it. . . .
Studies of the legal profession, including findings from my own survey, similarly confirm the benefits of charitable involvement. Particularly for young attorneys, pro bono work can provide valuable training, contacts, trial experience, and leadership opportunities. Through volunteer projects, lawyers can develop new areas of expertise and demonstrate marketable skills. Involvement in community groups, charitable organizations, high visibility litigation, and other public interest activities is a way for attorneys to expand their perspectives, enhance their reputations, and attract paying clients. Pro bono work also enables individuals to express the commitments to social justice that often motivated them to choose legal careers in the first instance. ABA surveys consistently find that lawyers’ greatest dissatisfaction with their practice is a lack of “contribution to the social good.” Volunteer work can provide that contribution.
So too, pro bono activity serves the interests of legal employers and the legal profession generally. Strong public service programs can produce tangible, although hard to quantify, organizational benefits in terms of retention, recruitment, reputation, morale, and job performance. Pro bono contributions also can enhance the reputation of lawyers as a group. In one representative survey, which asked what could improve the image of lawyers, the response most often chosen was their provision of 919free legal services to the needy; two-thirds of those surveyed indicated that it would improve their opinion of the profession.
For all these reasons, the vast majority of surveyed lawyers believe that the bar should provide pro bono service. However, the vast majority also oppose requiring such service. The most common objection is that it is unfair to make the profession satisfy a public obligation. If access to law is a societal value, then society as a whole should bear its cost. The poor have fundamental needs for food and medical care, but we do not require grocers or physicians to donate their help in meeting those needs. Why should the responsibilities of lawyers or their employers be greater?
One answer is that the legal profession has a monopoly on the provision of essential services. . . . Some pro bono contribution is not unreasonable to expect from lawyers in return for their privileged status. Nor would it be unfair to expect comparable contributions from other professionals who have similar monopolies over provision of critical services.
An alternative rationale for imposing special obligations on lawyers stems from their historic role as officers of the court and their special role in our governance structure. As a prominent New York bar report explained, much of what lawyers do “is about providing justice, [which is] . . . nearer to the heart of our way of life . . . than services provided by other professionals. The legal profession serves as indispensable guardians of our lives, liberties and governing principles. . . .” Because lawyers occupy such a central role in our justice system, there is also particular value in exposing them to how that system functions, or fails to function, for the have-nots. . . .
A second cluster of objections to pro bono responsibilities rests on moral grounds. To many lawyers, requiring pro bono service seems an infringement of their own rights, and a form of “involuntary servitude” or latent fascism. Other commentators view “compulsory charity” as a contradiction in terms. From their perspective, requiring assistance undermines its moral significance and compromises altruistic commitments. Drawing on studies of helping behavior, some critics argue that individuals are more likely to provide sustained and quality service if they are doing so voluntarily than if they are fulfilling a requirement.
There are problems with each of these claims, beginning with the assumption that pro bono service is “charity.” Rather, as the preceding discussion suggested, pro bono work is not simply a philanthropic exercise; it is also a professional responsibility. The effect that some minimum service requirement would have on overall pro bono participation is difficult to gauge. Critics have produced no evidence that voluntary assistance has declined in the small number of jurisdictions where courts now appoint lawyers to provide uncompensated representation. . . . Asking lawyers to make a modest contribution of service, along the lines that bar ethics codes suggest, generally between a half an hour to an hour a week, hardly constitutes “servitude.” And 920those who find it unduly burdensome could substitute a financial contribution.
The stronger arguments against pro bono obligations involve pragmatic rather than moral concerns. Many opponents who support such obligations in principle worry that they would not prove efficient in practice. A threshold problem involves defining the services that would satisfy a pro bono requirement. If the definition is broad, and encompasses any unpaid legal work, then experience suggests that poor people will not be the major beneficiaries; most work will help friends, relatives, middle-class non-profit organizations, and deadbeat clients. By contrast, if a pro bono requirement is limited to the low-income individuals given preferred status in some bar association’s aspirational standards, then that definition would exclude many crucial public interest contributions, such as work for civil rights, civil liberties, or environmental organizations. Any compromise effort to permit some but not all charitable groups to qualify for pro bono credit would bump up against charges of political bias.
A further objection to mandatory pro bono requirements is that lawyers who lack expertise or motivation to serve under-represented groups will not offer cost-effective assistance. In opponents’ view, corporate lawyers who dabble in poverty cases will often provide unduly expensive or incompetent services. . . .
From critics’ perspective, requiring attorneys to contribute minimal services of largely unverifiable quality cannot solve the problem of unequal access to justice. Worse still, such minimal mandates may divert attention from more productive ways of addressing unmet needs. Preferable strategies would include those proposed in earlier chapters, such as simplification of legal procedures, expanded subsidies for poverty law programs, greater assistance for pro se litigants, and fewer restrictions on provision of routine legal services by nonlawyers.
These are significant concerns, but they are not nearly as conclusive as critics suggest. It is certainly true that some practitioners lack many of the skills necessary to serve those most in need of assistance. But, as law professor Michael Millemann notes, the current alternative is scarcely preferable: “Assume that after four years in college, three years of law school, and varying periods of law practice some lawyers are ‘incompetent’ to help the poor. . . . All this despairing assumption tells us is that the poor are far less competent to represent themselves, and do not have the readily available access to attaining competency that lawyers have.” . . .
In any event, multiple strategies are available to reduce the likelihood of incompetent assistance and undue enforcement burdens. One is to allow lawyers to buy out their required service by making an equivalent financial contribution to a legal aid program. Another option is to permit lawyers in organizations to satisfy their obligations collectively by designating certain individuals responsible for fulfilling 921the hourly responsibilities of all their colleagues. A further possibility is to give continuing legal education (CLE) credit for time spent in training for pro bono work, and to rely on the same kind of honor system used in enforcing CLE requirements for pro bono obligations as well. Many voluntary public interest projects have effectively equipped participants through relatively brief educational workshops, coupled with well-designed manuals and accessible backup assistance. Bar associations could also provide free malpractice insurance for pro bono cases, supported by membership dues, that would cover practitioners who satisfied certain quality-related conditions. . . .
Only through experience with mandatory pro bono initiatives will it be possible to gauge their relative costs and benefits. Yet rather than encouraging such requirements, the organized bar has remained firmly wedded to an aspirational approach. And that approach has left a wide gap between the rhetoric and reality of bar pro bono commitments. . . .
Influences on Pro Bono Work: An Empirical Analysis of Workplace Factors
The objective of the empirical study summarized here was to provide the first broad-scale data about the personal characteristics, educational experiences, and workplace policies that influence pro bono participation. . . .
Taken together, the data collected and reviewed for this study make clear that financial considerations are neither decisive nor unimportant in explaining pro bono contributions. As is true with altruistic behavior generally, economic ability does not determine charitable involvement. Rather, the most powerful influences are a sense of satisfaction and obligation, together with the professional benefits or costs associated with pro bono work. Yet some of these benefits and costs are influenced by external factors, particularly workplace policies. Even seemingly personal motivations, such as the satisfaction that lawyers experience from pro bono involvement, may be in part a function of the opportunities, training, and support that their employers provide or fail to provide. So too, the negative pro bono experiences that some lawyers reported may reflect a mismatch between their interests or expertise and the volunteer options readily available. Certain adverse reactions to clients also may indicate a lack of understanding or “cultural competence” in dealing with low-income individuals. . . .
Not only could well-designed workplace programs affect satisfaction with pro bono work, they also could reduce the costs of pursuing it. Yet as the survey findings make clear, most programs leave much to be desired. . . . Only a quarter of the employers fully counted pro bono work toward billable hours. Fewer than a third counted a certain number of hours (20 percent) or a certain kind of work (10 percent). Such findings are consistent with other recent survey data, and signal a priority structure that undermines public service commitments. . . . In effect, pro bono work was permissible only if it occurred “outside the normal work 922hours.” Given what passes for “normal” in many firms, the price of public service is often prohibitive.
Other limitations on pro bono participation arise from workplace practices concerning resources, rewards, and recognition. Only about half of the surveyed workplaces (57 percent) subsidized all the costs of pro bono matters. . . . Only 10 percent of surveyed lawyers indicated that their organizations valued such work as much as billable hours. About a fifth (18 percent) believed that pro bono contributions were not viewed as important, and almost half felt they were negatively viewed (44 percent). . . . Over a third of surveyed lawyers noted that their organizations’ informal reward structures were at odds with formal policies supporting pro bono work. Some attorneys volunteered comments that were highly critical: firm leaders simply paid “lip service” to pro bono work for purposes of recruiting or self-image; others “encouraged pro bono on the surface but [provided] . . . no incentive to do it.” . . .
An Agenda for Reform: Connecting Principles to Practice
The findings set forth above suggest a number of best practices to which organizations should aspire. They include:
This is not a modest agenda. But it surely merits greater efforts. Pro bono service reflects all that is best in the legal profession. . . .
———
As the debate over mandatory pro bono underscores, the provision of free services by busy law firm lawyers raises questions about how firms monitor the quality of pro bono representation. The following excerpt 923suggests that firms may do too little to evaluate the cost-effectiveness and impact of their pro bono activities.
Scott Cummings and Deborah L. Rhode, “Pro Bono: Quantity over Quality”
National Law Journal, July 19, 2010.
A fundamental difficulty [in evaluating pro bono] involves the dominance of ranking systems that use hourly rates as the sole measure of performance, [which risks] diverting attention from quality and social impact. [In our survey of law firm pro bono counsel, n]one of our surveyed firms had formal mechanisms for gauging satisfaction among nonprofit organizations that referred or co-counseled cases. Nor did any firms engage in systematic analysis of the cost-effectiveness and social impact of their efforts.
This was not for lack of concern. Pro bono counsel cared deeply about their programs’ impact on stakeholders, and many were interested or engaged in preliminary efforts to develop more systematic evaluation frameworks. Yet structural barriers proved to be significant. Many counsel expressed frustration with the powerful influence of the current quantitative ranking structure [of publications like the American Lawyer], while some also had legitimate concerns about evaluation criteria, and worried about the lack of clear metrics, resources, and expertise. [The result is that] many programs seem to operate on the assumption that any unpaid service is a good in itself, and that its value need not be questioned unless someone actually complains. Yet this reactive approach is better suited to commercial practice, where dissatisfied clients can vote with their feet, than to charitable settings where recipients of aid may lack the knowledge or sense of entitlement to express concerns.
How best to improve evaluation of pro bono efforts is a complicated question, but our study suggests some possibilities worthy of consideration. One possibility is to expand the criteria for assessing pro bono programs. Our findings suggest several possibilities. Firms could make greater efforts to evaluate stakeholder satisfaction, cost-effectiveness, and social impact. Ranking systems could be developed to take account of these efforts. . . . Finally, more attention should center on enlisting lawyers in broader social justice initiatives. Pro bono work, although crucial, is no substitute for a full-service system of delivering aid to underrepresented constituencies. Law firm lawyers, however committed, collectively lack the time, expertise, resources, and freedom from conflicts of interest necessary to ensure adequate access to justice.
9241.Would it be possible to ensure reasonable levels of competence and compliance under a mandatory pro bono system? Are there strategies for increasing voluntary contributions that might be preferable?
Esther F. Lardent, as president of the Pro Bono Institute, warned that mandatory systems make a “very small dent in a very large problem.” In her estimation, the costs of training participants, administering referrals, and monitoring performance were likely to exceed the benefits:
Unfortunately, the end product of a successful campaign for a mandatory pro bono program probably will fail to meet the original goals of the program’s proponents. Experience demonstrates that the political compromises involved in securing approval of such a program will result in a definition of pro bono service so broad that it encompasses activities already undertaken by virtually all lawyers. All lawyers will be in compliance, yet no additional services to address unmet legal needs will be provided. . . . Mandatory pro bono will not increase services, enhance professionalism, or improve the performance of existing pro bono programs.137
Do you agree? How would Deborah Rhode respond? Do differences in the context of lawyers’ practices call for different requirements? Should they be imposed by legal employers rather than the bar and should more efforts focus on evaluating their quality?138 If Lardent is right, should the advocates of increased legal services for the poor focus on changing the political climate within the bar? Should they push for a pro bono reporting requirement? Or should they concentrate on ways to increase funding for existing legal assistance programs and to reduce the need for lawyers? Which is most likely to make a difference in the long run?
2.As Rhode’s excerpt notes, critics of mandatory pro bono believe that minimum requirements, such as fifty hours a year provided by counsel unfamiliar with problems of indigents, would be a grossly inadequate response to current levels of unmet legal needs. The failure of most programs to monitor quality compounds these concerns.
Others point out, however, that voluntary programs are open to similar objections and raise a further problem. The wider the disparity between lawyers’ rhetorical and actual commitment to public service, the more vulnerable the profession becomes to charges of hypocrisy. In 2014, only about a quarter of the 200 largest law firms had more than 50 percent of attorneys providing more than 20 hours of pro bono assistance a year.139 925After the election of Donald Trump, there was a spike in pro bono in these firms.140 In 2017, nearly 50 percent of lawyers in the largest firms reported doing at least 20 hours of pro bono work and the average annual pro bono hours per lawyer was nearly 60—a figure that roughly held steady in 2018.141 Despite these figures, some argue that pro bono “aspirations” enhance the bar’s self-importance and entitlement to special status without the inconvenience of significant sacrifice on the part of most practitioners. How would supporters of the current Rule respond to this objection? How would you?
3.Should the ABA require that law schools establish adequate pro bono programs as a condition of accreditation? How should “adequacy” be defined? Should students’ participation in pro bono be mandatory? Consider the objection shared by many students: “I advocate volunteerism and try to do my part, but I would resent being told how to manifest my charity. Most important, I would resent the law school judging the merit of my charity choices.”142
4.Should pro bono requirements be imposed upon law faculty in schools that impose such requirements on students? At Tulane, architects of a mandatory student pro bono program felt that the faculty, “for academic freedom reasons, would not buy into imposing [a pro bono requirement] on themselves.” At the University of Pennsylvania, professors approved what is now a “highly regarded student program, but were split on mandating pro bono for themselves. That part of the proposal died.”143 Some suggest that it is hypocritical for faculty to require the student body to do as they say, not as they do. Do you agree? Consider that issue in light of the rationale for pro bono in law schools in Chapter 16, Section B.
5.Should the bar require reporting of pro bono hours and financial contributions? Data on their effectiveness is mixed.144 Should law firms require service or financial contributions? Should governments demand pro bono contributions by any outside attorneys they hire? Note that some localities and other nations take this tack.
6.Should the bar compel applicants to demonstrate that they have provided a threshold amount of pro bono service as a condition of admission? 926In 2012, Chief Judge Jonathan Lippman of the New York Court of Appeals announced the adoption of a new rule requiring all applicants to the New York bar to have performed 50 hours of pro bono in order to gain admission. What is the rationale for requiring law students to perform pro bono in order to become lawyers but exempting lawyers, after admission, from any requirement? Particularly given the significant cost of law school, do you think it is fair to make students do uncompensated work (on top of all the other requirements) in order to gain admission? Does the fact that the New York bar permits clinical work and externships (for which students get academic credit) to count toward the fifty-hour requirement undermine its purpose or make the requirement more justifiable?
7.Given the findings in the Cummings and Rhode study discussed above, do you think that firms should invest more time and money in evaluation? The effective altruism movement, associated with prominent ethicist Peter Singer, advocates the use of evidence-based analysis to do the most good with available resources. What could law firms do better to promote the effective distribution of their pro bono resources? One problem in determining the costs and benefits of pro bono is that law firms deploy a calculus that factors in benefits to the firms. This calculus can skew the allocation of pro bono resources toward projects that firm lawyers find gratifying rather than basing the allocation on an objective analysis of how firms could make the most impact in society.145
8.While liberal critiques of pro bono tend to focus on the problems of inadequate quantity and quality reviewed above, some conservatives take aim at the purported liberal bias of big-firm pro bono. As one commentator put it: “In the guise of altruistic-sounding ‘pro bono publico’ programs . . . , the country’s largest—and richest—law firms deploy the equivalent of thousands of full-time attorneys and paralegals gratis each year in a myriad of quixotic liberal crusades, smugly convinced that their labors improve society.”146 Research on pro bono suggests that firms direct most of their pro bono hours to routine cases involving the legal problems of the poor. When firms do cause-oriented pro bono, it tends to be on behalf of organizations associated with liberal causes, like the ACLU, reprising the debate over what counts as lawyer service in the public interest.147 Do you think it is problematic for law firms to get involved in representing groups on contentious issues of social policy?
9.Despite the problems with pro bono at large law firms, the amount of pro bono provided by big-firm lawyers has grown significantly over the past two decades, owing in part to the creation of structures inside firms to facilitate intake, placement, and monitoring. Seeking to extend those models to other contexts, supporters of pro bono have attempted to strengthen pro 927bono culture in corporate in-house legal departments. In the late 1990s, the Pro Bono Institute teamed up with the Association for Corporate Counsel to create the Corporate Pro Bono Challenge, which asks in-house legal departments to encourage 50 percent of their legal staff to engage in pro bono work. Since its inception, the number of Challenge signatories has more than tripled to over 175 legal departments nationwide.148 Nonetheless, in-house lawyer pro bono participation remains relatively weak. According to the After the JD study, only 42 percent of mid-career in-house lawyers do pro bono, contributing eighteen hours per year on average—the lowest of any lawyers in the private sector.149 In explaining these low numbers, in-house lawyers cite the lack of pro bono opportunities that match their transactional skill set, as well as restrictive bar licensing rules impeding them from engaging in multijurisdictional pro bono practice.150 Should the bar do more to promote in-house lawyer pro bono service or is this an area in which resources could be better spent elsewhere?
10.The model of pro bono service in which lawyers volunteer to work on pre-screened cases without an expectation of any fee, while an important part of the American professional tradition, has gained prominence over the past quarter-century in relation to the growth of large law firms, which have the resources and excess capacity to mobilize volunteer hours. In contrast, lawyers in solo and small-firm practice have long engaged in “low bono” work, in which they discount their services for clients unable to pay market rates. In the low bono model, discounting may happen in advance of the representation, with the lawyer and client agreeing on below-market rates based on the client’s ability to pay, or it may happen after the fact, when a lawyer writes down fees because of the client’s financial distress.151 Low bono work is recognized by the ABA in Rule 6.1 as a form of “voluntary pro bono publico service,” albeit one with lower status than service that is entirely free. The rule states that while a “substantial majority” of a lawyer’s pro bono hours should be targeted “without fee or expectation of fee” to “persons of limited means” or organizations that work on their behalf, a lawyer may also provide additional services at a “substantially reduced fee.”
Because of the critical role that solo and small firms often play in communities as a point of contact with the legal system, low bono advocates have promoted investment in “community-embedded law practices” as a way to expand access to justice. As Luz Herrera has suggested, such practices can “serve as first responders to systemic injustices and routine personal legal problems. Their presence contributes to community development by helping community members understand their legal rights and responsibilities.”152 Given that most lawyers in the United States still practice in solo and small-928firm settings, low bono proponents argue that supporting those lawyers to extend the reach of their low bono work could make a significant impact in bridging the justice gap. What is your view? Given the economic marginality of many solo and small firms, how realistic is it to think they can make significant contributions to serving poor clients? What could law schools and the bar do to support community-embedded lawyers who seek to play such a role?
11.In addition to voluntary pro bono, courts have long exercised power to appoint lawyers to represent indigent individuals in both criminal and civil cases. Rule 6.2 instructs a lawyer not to “seek to avoid appointment by a tribunal to represent a person except for good cause,” including the likelihood that the representation will result in violations of the Rules or other law, impose “an unreasonable financial burden,” or lead to impaired assistance because of the lawyer’s repugnance for the client or cause. Rule 1.16(c) also forbids a lawyer who has undertaken representation to withdraw from a case pending before a tribunal without the tribunal’s permission.
The duty to represent indigent individuals without a fee has been traced back to Roman and medieval ecclesiastical traditions, as well as to a path breaking English statute enacted in 1495, which provided for the appointment of “learned Councell and attorneys” to represent paupers in all courts of record. It is unclear, however, how often courts actually made such appointments, and equally unclear to what extent appointed attorneys had to serve without compensation.153 Evidence concerning the appointment power in this country is similarly sketchy.154 Most experts, however, see no constitutional bar to courts exercising of their inherent authority over the practice of law in order to require reasonable amounts of service.
Some lawyers have challenged courts’ power to make involuntary appointments on the ground such appointments violate the Fifth Amendment’s takings clause. Most courts have rejected this claim, although a few have interpreted takings clauses in state constitutions to prevent uncompensated court appointments. For example, in Scheehle v. Justices of the Arizona Supreme Court, 508 F.3d 887 (9th Cir. 2007), the Ninth Circuit upheld an Arizona rule authorizing superior courts to appoint active members of the bar to serve as arbitrators for two days a year in the courts’ mandatory arbitration system for cases involving no more than $65,000. In the appellate panel’s view, the economic impact of the required service was negligible, and there was no showing that it significantly interfered with the complaining lawyer’s legal work. Accordingly, the deprivation was not significant enough to call for compensation.
Similarly, in United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965), the Ninth Circuit reasoned:
An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and 929to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation.
The U.S. Supreme Court has never spoken directly to the issue. But, in dicta and in one summary dismissal, it has implied that uncompensated court appointment is permissible, at least in criminal cases. In Ex Parte Sparks, 368 So. 2d 528 (Ala. 1979), the Alabama Supreme Court upheld an assignment system for indigent criminal defense, and the United States Supreme Court summarily dismissed an appeal, 444 U.S. 803 (1979). And in earlier cases, the Court concluded that attorneys, as “officers of the court” are “bound to render service when required.” Powell v. Alabama, 287 U.S. 45, 73 (1932).
What do you make of the above authority? Is it justifiable to appoint lawyers to represent a client for little or no pay? What if the case requires a large investment of time to do competently? Is there a danger that the lawyer won’t invest the necessary time and the appointing court won’t call the lawyer on it?
12.A practical wrinkle with the above appointments is that lawyers who are required to provide services for grossly inadequate fees have little incentive to defend a case zealously. In some instances, statutory ceilings on compensation have resulted in rates as low as $2.00 an hour. Yet as Chapter 8 on criminal defense and Chapter 3 on malpractice note, the constitutional standards for assessing attorneys’ performance remain notoriously lenient. Under Strickland v. Washington, 466 U.S. 668, 688 (1984), defendants must demonstrate a reasonable probability that the lawyer’s actual incompetence caused a difference in the outcome of the trial. Is this constitutional requirement an adequate means of insuring competence where lawyers are required to provide pro bono representation?
5.Alternative Dispute Resolution
In this Part, we consider the effectiveness of alternative dispute resolution, or ADR, in addressing the problem of inadequate access to legal representation. ADR has been around for centuries. Beginning in the late 1960s, however, such procedures began to attract greater attention. A broad range of factors fueled interest in these alternatives: dissatisfaction with the expense, delays, and contentious nature of adjudication; concerns about undue litigiousness; worries about inadequate and unequal access to justice; desires for increased client control and community empowerment; heightened interest in preserving relationships and exploring root causes of problems; and perceived inadequacies in other family, religious, and community institutions for addressing grievances.155 In its current form, ADR seeks to encompass 930more than just alternatives to litigation; it also aims to address different kinds of disputes through cost-effective processes.156
Advocates of ADR support “fitting the forum to the fuss.”157 Their premise is that different types of disputes and dispute resolution procedures have distinctive characteristics and should be matched accordingly. Lon Fuller, a pioneering theorist of ADR, argued that adjudication is appropriate for cases involving fundamental rights or unsettled legal principles, but that other procedures might be more suitable for routine matters, for parties with ongoing relationships, or for grievances that affect multiple stakeholders and do not lend themselves to principled win-lose decisions.158 Building on that approach, many proponents refer to ADR as “appropriate” rather than “alternative” dispute resolution.
At the most abstract level, most supporters of alternative dispute resolution share certain common objectives. They join in what former Chief Justice Burger summarized as the true goals of the legal profession: “to gain an acceptable result in the shortest possible time with the least amount of stress and at the lowest possible cost to the client.”159
Few quarrel with this premise, but what constitutes “acceptable” remains contested and these goals do not always push in the same direction. Conflicts often arise between cost and quality, and between parties’ desire for private, mutually acceptable outcomes and societal interests in transparent and publicly accountable decisionmaking. Increasingly too, debates have arisen as to whether individuals’ consent to route disputes into alternative forums is sufficiently authentic and also whether certain kinds of ADR, most notably forced arbitration, strip litigants of court access while systematically favoring particular (and often, particularly well-heeled) litigants. These controversies are explored in more detail below.
Still, this swirling criticism has not stunted ADR’s extraordinary growth. The number of mediations and arbitrations conducted by the American Arbitration Association (AAA), a non-profit association, tripled during the 1990s, and the AAA now resolves thousands of disputes each year, including many big-ticket disputes involving billions of dollars. Meanwhile, federal courts are required to offer ADR, virtually every state court offers it, and many mandate submission to mediation as a precondition to obtaining a trial date.160 Efforts to expand ADR have, in 931recent years, received a powerful boost by federal legislation, as both the Civil Justice Reform Act of 1990 and the Alternative Dispute Resolution Act of 1998 explicitly endorse ADR, reflecting Congress’s belief that alternative dispute resolution “has the potential to provide a variety of benefits, including greater satisfaction of the parties, innovative methods of resolving disputes, and greater efficiency in achieving settlements.”161 ADR has also found a staunch supporter in the U.S. Supreme Court, which through a series of recent judgments has made it much easier for corporations to route disputes with their customers to alternative, rather than traditional, tribunals.162
Dispute resolution structures vary across multiple dimensions.163 These include:
What constitutes a good outcome may also depend on the nature of the process. But in general, assessments turn on whether the process reflected values such as neutrality, confidentiality, transparency, and cost effectiveness; whether parties were treated with dignity; whether parties were able to express themselves and their positions; and whether a mutually-agreeable and/or equitable solution was reached.164
932Popular alternative dispute resolution structures include:
Arbitration. In arbitration, parties voluntarily submit their dispute to a neutral decisionmaker, often an attorney, law professor, or a retired judge or industry professional. Sometimes, both parties make an informed and voluntary decision to submit their dispute to arbitration. At other times, in what is commonly known as “mandatory” or “forced arbitration,” a consumer, patient, client, nursing home resident, or employee “consents” to arbitration as a condition of a standardized “take it or leave it” contract, in which the arbitration clause is buried in the fine print.
Regardless of how consent to arbitration is obtained, procedures are generally the same. The arbitrator is chosen by mutual agreement of the contending parties from a list of professionals (though, in the case of forced arbitration, the contract typically specifies the arbitration firm that must be used and the location where the arbitration will take place). Compared to judges or juries, arbitrators have greater discretion. Arbitrators’ judgments are usually final; review is available only in limited circumstances and generally only for procedural irregularities. Arbitrators are not required to follow precedent or abide by the principles of stare decisis. The process is private, and decisions are often sealed and are not given any kind of precedential or preclusive effect. Common procedural safeguards (such as limits on the admission of certain types of potentially unreliable evidence) generally do not apply.165
Private Adjudication. Some statutes and rules of court permit referral of cases to privately selected and compensated adjudicators, often retired judges. Under such referral programs, sometimes labeled “rent-a-judge,” the private adjudicator’s decision is entered as the judgment of the court. Unlike an arbitrator’s award, this judgment is normally appealable.
Summary Jury Trial. Under this procedure, lawyers give a summary of their trial presentation to a jury, usually without witnesses or exhibits. The jury then renders a verdict that is not binding, although the jurors are not informed of this fact before reaching their decision. This verdict can assist parties as they evaluate their claims and negotiate a reasonable settlement.
Mini-Trials. Mini-trials, or “structured settlement” negotiations, offer opportunities for lawyers to present an abbreviated version of their case to a decisionmaking panel. In one common variation, the panel includes a neutral advisor and executives of the opposing party. The aim is to enable the parties to hear a forceful presentation of their adversary’s case. After the neutral advisor predicts what would happen if the case were litigated, the principals attempt to negotiate a settlement. In some 933mini-trials, the neutral advisor will render an advisory opinion only if the parties initially fail to reach an agreement.
Mediation. Mediation, explored more fully in Chapter 12, Section B, is an informal process in which a neutral mediator, selected by the parties, helps them resolve a dispute or structure a transaction. Ordinarily, the mediator facilitates, but does not impose, a solution. Parties usually go to mediation voluntarily, often in the midst of litigation. However, some jurisdictions require mediation for certain types of cases, such as child custody disputes. Distinctions are often drawn between “evaluative mediation,” in which the mediator suggests an appropriate settlement range in light of the legal and factual strength of parties’ claims, and “facilitative mediation,” in which the mediator helps the parties to find a solution that reflects their underlying interests and maximizes opportunities for joint gains.
Community-Based Dispute Resolution. Neighborhood justice centers, citizen complaint bureaus, and other community-based centers function either as free-standing institutions or as court-affiliated agencies. These organizations typically receive referrals from courts, prosecutors, police officers, or other community agencies, as well as walk-in clients. Professional mediators or volunteers with mediation training handle a variety of disputes, including landlord-tenant, family, and neighbor relations. Some jurisdictions have also established specialized “holistic,” “therapeutic,” or “community” courts to deal with problems like domestic violence, homelessness, or mental illness; some problem-solving courts also address misdemeanors such as prostitution and low-level drug possession. Judges in these proceedings receive special training and partner with other social service providers to offer comprehensive treatment. By employing mediation and other alternative dispute resolution techniques, these courts seek to engage parties in productive, collaborative problem solving.166
Early Neutral Evaluation or Expert Evaluation. Used both in private dispute resolution and court-annexed programs, this technique involves reliance on an experienced attorney or technical expert to evaluate a case. After summary presentations by counsel and the parties, the evaluator assesses the issues in dispute in an effort to facilitate settlement negotiations.
Online Dispute Resolution. Online dispute resolution began in the 1990s as a way to handle disputes involving electronic commerce. Traditional methods were inadequate for a number of reasons: parties were geographically distant; complicated issues of jurisdiction and choice of law arose; and judgments were difficult to enforce. Online ADR filled the gap, and its low cost and accessibility became attractive for other 934disputes. By 2010, there were over 150 sites, in all areas of the world, and eBay alone was resolving six million disputes annually.167
Recent technological innovations are providing an increasing array of online dispute resolution processes. They include: (a) online e-mail or instant messaging negotiation or mediation, such as services to resolve controversies over online auction purchases; (2) interactive blind bids, in which lawyers for a plaintiff and a defendant who have already agreed on liability can negotiate monetary damage amounts until their bids converge close enough for the computer to create a settlement; and (3) ad hoc jury panels that allow parties with small claims to post arguments and evidence online and to respond directly to the panel’s questions; and e-mediation, described in Chapter 12 Section B.168
Debates over ADR—Particularly Forced Arbitration
These varied dispute resolution processes have sparked an equally varied set of critiques. Somewhat paradoxically, many of the same criticisms leveled at litigation-based strategies have also been directed at more informal alternatives. Critics claim that some ADR processes do not result in the substantial savings in time or cost that their proponents sought to achieve. One reason is that court-annexed processes often resolve disputes that would have otherwise settled without trial. Thus, though arbitration has been promoted as a way to avoid the adversarialism, delay, and expense of trial, binding arbitration is now sometimes described in similar terms—as “judicialized,” “formal,” “time-consuming,” and “subject to hardball advocacy.”169
Other criticisms have an equally paradoxical quality: ADR is criticized for being both too available and not available enough. Some commentators complain that options such as rent-a-judge or mini-trials are affordable only by the wealthy. Such a market-based structure institutionalizes “legal apartheid”—convenient, speedy justice for the haves and cumbersome, inefficient processes for the have-nots. By creating a two-track system, alternative dispute procedures also may reduce pressure to reform the judicial system that makes such alternatives necessary. Critics also claim that low-cost community ADR procedures can do more to defuse than to resolve conflict. For example, by individualizing grievances shared by many community residents—such as complaints by tenants against a large landlord—such procedures deflect attention from common problems and the collective efforts 935necessary to address them. By expanding “access to justice” for these individual claims, dispute resolution reforms may foster the illusion that “justice” has been done when underlying problems remain unsolved.
Another group of critics, meanwhile, complains that ADR, and particularly forced arbitration, is too often imposed on middle- and low-income consumers, patients, clients, nursing home residents, and employees and that it too often offers skewed outcomes. Over half of private sector nonunion employees (about 60 million workers) are subject to mandatory arbitration, up from 2 percent in 1992, and no other country uses such processes so extensively in consumer and employment contexts.170 The Supreme Court has upheld such arbitration requirements, even those barring class-wide claims and collective actions, which makes litigation of most individual cases prohibitively expensive, and encourages powerful parties to impose arbitration clauses.171 Problems are especially likely to arise in systems that pit repeat players against one-shot, individual participants. This is so because, as a California judge bluntly notes: “arbitrators have an economic reason to decide in favor of the repeat players.”172 Even arbitrators concede that this concern is real. Said one Los Angeles arbitrator: “Why would an arbitrator cater to a person they will never see again?”173
Empirical evidence does suggest that, particularly when it comes to forced arbitration, repeat players, who typically draft one-sided arbitration clauses, and often select and pay arbitrators, have the upper hand and achieve better outcomes than in similar litigated cases.174 For example, a Public Citizen study of arbitration proceedings in California found that businesses won nearly 94 percent of cases.175 Likewise, the U.S. Government’s Consumer Financial Protection Bureau (CFPB) has recently found that financial corporations win 93 percent of claims they bring against consumers in arbitration.176 And a massive study of 25,000 arbitrations concluded in 2015 by the New York Times, found that 936roughly two-thirds of consumers contesting credit card fees failed in their arbitration attempts.177 Mandatory arbitration clauses can also force individuals to forgo their claims because the process is prohibitively expensive in light of the potential gains. Many clauses require individual consumers to pay substantial up-front fees to subsidize the arbitration, as well as to shoulder high travel costs, because the company can pick the forum, and often uses a distant corporate headquarters.178
The CFPB study also casts doubt on the authenticity of client consent. It found that more than 75 percent of consumers surveyed did not know whether their contract with their financial service provider subjected them to a forced arbitration clause, while fewer than 7 percent of covered consumers realized that the clause eliminated their ability to sue in court.179
1.Of forced arbitration, U.S. District Court Judge William G. Young, a Reagan appointee, has stated: “This is among the most profound shifts in our legal history . . . . Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”180 Similarly, in a letter last year to the CFPB, sixteen state attorneys general warned that “unlawful business practices” could flourish, if arbitration clauses, coupled with class action bans, were broadly permitted.181 How serious is that concern?
2.By contrast, Andrew J. Pincus, a partner at Mayer Brown in Washington who has represented companies that include binding arbitration clauses in their consumer contracts, has said that class actions yield little relief for plaintiffs. According to Mr. Pincus: “Arbitration provides a way for people to hold companies accountable without spending a lot of money.” What might be some barriers to such accountability? According to the New York Times review referenced above, between 2010 and 2014, only 505 consumers—nationwide—went to arbitration to resolve a dispute of $2,500 or less. The same review found that Verizon, which has more than 125 million subscribers, faced only 65 consumer arbitrations in those five years; Time Warner Cable, with 15 million customers, faced seven; and Sprint, with 57 million subscribers, faced six.182 If those numbers undercut Mr. Pincus’s optimistic assertion, what implications follow?
9373.Consider the following excerpt from the New York Times arbitration review:
Deborah L. Pierce, an emergency room doctor in Philadelphia, was optimistic when she brought a sex discrimination claim against the medical group that had dismissed her. Respected by colleagues, she said she had a stack of glowing evaluations and evidence that the practice had a pattern of denying women partnerships.
She began to worry, though, once she was blocked from court and forced into private arbitration.
Presiding over the case was not a judge but a corporate lawyer, Vasilios J. Kalogredis, who also handled arbitrations. When Dr. Pierce showed up one day for a hearing, she said she noticed Mr. Kalogredis having a friendly coffee with the head of the medical group she was suing. During the proceedings, the practice withheld crucial evidence, including audiotapes it destroyed, according to interviews and documents. Dr. Pierce thought things could not get any worse until a doctor reversed testimony she had given in Dr. Pierce’s favor. The reason: Male colleagues had “clarified” her memory.
When Mr. Kalogredis ultimately ruled against Dr. Pierce, his decision contained passages pulled, verbatim, from legal briefs prepared by lawyers for the medical practice, according to documents.
“It took away my faith in a fair and honorable legal system,” said Dr. Pierce, who is still paying off $200,000 in legal costs seven years later.183
Dr. Pierce could not appeal, because arbitration rulings are typically final. What rights would Dr. Pierce have had in court that she did not have once the case was routed to arbitration?
4.The above excerpt raises questions about arbitrators’ ethics. Currently, ADR professionals are not held to a uniform set of ethical standards.184 And, some arbitrators have engaged in deeply questionable conduct. For example, in one arbitration, the arbitrator went to a basketball game with the company’s lawyers the night before the proceedings began. In another, the arbitrator and defense company lawyer went to lunch together in the midst of the proceeding.185 Should arbitrators be held to uniform standards and be required to demonstrate objectivity or certain minimum qualifications for practice? If so, how should these standards and qualifications be developed and enforced?
5.Is there an even greater need for ethical guidance for online dispute resolution (ODR) than other forms of ADR? Because it is a relatively new 938development and is generally not affiliated with courts or professional organizations, ODR is largely unregulated.186 Although efforts have been made to develop and compile best practice guidelines, they have had little demonstrable impact.187 Does that suggest a need for external regulation?
In 2015, the Council of Europe’s Committee on Legal Affairs and Human Rights passed a draft resolution calling on Council of Europe member states to:
[M]ake voluntary ODR procedure available to citizens in appropriate areas; raise public awareness of the availability of such procedures and create incentives for choosing them including by promoting the extrajudicial enforcement of ODR decisions and by enhancing the knowledge of legal professionals about ODR . . . . ensure that parties engaging in ODR procedures retain the right to access a judicial appeal procedure . . . . [and] undertake to develop common minimum standards that ODR providers will have to comply with in order to ensure, inter alia, that their procedures do not unfairly favor regular users over one-time users, and to strive to establish a common system of accrediting ODR providers satisfying these standards.188
Does that resolution provide a desirable model for the United States?
6.According to some corporate lawyers, it’s “malpractice” to not include an arbitration clause in consumer contracts.189 By contrast, critics of forced arbitration argue that it is a violation of bar ethical standards for lawyers to draft and attempt to enforce mandatory arbitration clauses that are so one sided that courts would find them violative of due process.190 Do you agree with either of these positions? If so, what arguments would you make in support? Under what, if any circumstances, would you be willing to draft a mandatory arbitration clause?
7.Between 2010 and 2014, over 100 cases against nursing homes for wrongful death, medical malpractice, and elder abuse were channeled into forced arbitration. Concerned about such channeling, thirty-four U.S. Senators asked the federal government to deny Medicare and Medicaid funding to nursing homes that employ arbitration clauses. In a September 2015 letter, these Senators noted:
The decision to admit yourself or a loved one to a long-term care facility can be difficult. Unfortunately, families often have limited 939choices due to cost and location constraints. Yet, long-term care facilities sometimes force and often encourage potential residents and their families to waive their legal rights before any harm has occurred and to agree to a dispute resolution forum that may be biased in favor of the facility. One signed, pre-dispute arbitration decisions are binding, with a very limited right to appeal an arbitrator’s decision. Given the consequences of this decision, pressuring potential residents to make an on-the-spot decision about whether they want to arbitrate any potential future dispute is unfair to residents and their families during the overwhelming and paperwork-intensive nature of the long-term care facility admission process.191
If you were a U.S. Senator, would you sign this letter? Why or why not?
8.In the wake of #MeToo, it became apparent that many victims of repeat sexual abusers such as Harvey Weinstein and Roger Ailes had been silenced by requirements of private arbitration for their complaints. In response, the ABA House of Delegates passed a resolution calling on legal employers not to require employees to arbitrate sexual harassment claims.192 Student groups at a dozen or so law schools, under the leadership of Harvard’s People’s Parity Project, agreed not to accept money from firms that require arbitration, and not to promote such firms to their members.193 The effort has been partially successful, and a significant number of prominent firms have ceased using mandatory arbitration clauses.194 However, when student groups at about forty schools conducted surveys to find out if major legal employers required mandatory arbitration, a majority refused to respond. Some groups are now refusing to promote non-responding firms to their members and are calling on the National Association for Law Placement to add questions to its Directory of Legal Employers asking about arbitration requirements for lawyer and non-lawyer employees.195
One firm that has refused to change its policy is DLA Piper. That firm has already been suffering bad press from a dispute over sexual abuse by a firm partner involving another partner who was subject to an arbitration clause. A firm statement explained:
There are advantages and disadvantages to every type of dispute resolution process. It has been our experience as a firm that arbitration is a fair and efficient way to resolve internal disputes, 940and one that benefits all parties in what are often sensitive matters for everyone involved.196
If you were a leader of one of the student groups involved in the boycott, how would you respond? If you were not a member of one of those groups, would you accept a job at a firm that required mandatory arbitration as a condition of employment? Why or why not?
a)A former client asks your advice on whether to hire a retired judge or to stage a mini-trial to resolve a million-dollar contract dispute. What questions would you ask, and which considerations would be most relevant to your advice? Are there other ADR processes that you would recommend instead?
b)You represent the plaintiff in a contingent-fee products liability claim. The defendant has proposed to resolve the issue through a confidential arbitration proceeding. You are reluctant to agree because you have already incurred most of the costs necessary to try the case, and you believe that your client could generate a larger award from a jury than from an arbitrator (which would mean a larger fee for you). Moreover, the potential adverse publicity of such a verdict might prompt a generous settlement. In either case, your success is likely to attract more visibility and more new clients than a confidential arbitration award. Your client, however, is extremely risk-averse and might be tempted to accept the alternative dispute resolution offer, since it is likely to result in a substantial financial recovery and could not be appealed. Are you obligated to discuss the ADR proposal with the client and to disclose your own interests? See Rules 1.2, 1.4, and 1.7.
c)You are a lawyer for the United States Agency for International Development. The Agency has recently come under criticism by U.S. women’s rights organizations for sponsoring a mediation program in Nicaragua that includes domestic violence cases. Although a local feminist cooperative has supported the program, some observers are concerned that the program’s emphasis on harmony and individual solutions may perpetuate victimization, as well as undercut broader political efforts. Given the widespread opposition to mandatory mediation of domestic violence cases in the United States, women’s rights groups argue that American tax dollars should not subsidize such initiatives abroad. By contrast, supporters of the Nicaraguan program, although sensitive to its disadvantages, believe that it is often preferable to litigation, given the geographic inaccessibility of courts for much of the country, and the costs for victims who bring formal complaints. From supporters’ perspective, the United States should support local understandings of appropriate conflict resolution, not impose its own 941standards.197 How would you advise the Agency to proceed? When the United States sponsors “rule of law” initiatives abroad, how should government decisionmakers assess the procedural alternatives?198
a)In 2014, General Mills, the maker of such American staples as Cheerios, Lucky Charms, and Betty Crocker cake mix, found itself in hot water when it went public with a legal policy specifying that all customers who joined its online community could no longer sue the company. Consumers joined that community whenever they “liked” a product on Facebook, signed up for e-mail alerts, or obtained online coupons. All members of the company’s “community” would, henceforth, be forced to submit all disputes with General Mills to binding arbitration.
The New York Times highlighted this move in a series of articles, and many consumer groups vocally criticized General Mills for what they considered to be an improper curtailment of legal rights. Said one: “It’s essentially trying to protect the company from all accountability, even when it lies. . . .” Another complained: “Trix don’t belong in the fine print.”199 Under pressure, General Mills ultimately rescinded the policy and blamed the public relations disaster on an unfortunate misunderstanding.200
Why do you suppose General Mills was so eager to channel disputes with consumers to binding arbitration in the first place? Suppose you had been General Mills’ General Counsel as this policy was debated. What advantages would you identify? What risks and costs would you bring to your employer’s attention?
b)Worried about the expanded use of arbitration clauses, some policymakers support the Arbitration Fairness Act of 2015 (H.R. 2087, S. 878), which “[d]eclares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.” Partly in response to #MeToo, bipartisan federal legislation also has been proposed to ban 942arbitration proceedings in sexual harassment cases, and nearly all state attorney generals have supported such a ban.201
Would you support either of these proposals? Are there any contexts in which predispute arbitration requirements make sense?
6.Innovation: Technology and Simplification
Given the scale of the access to justice problem, even the most stalwart supporters of increasing the supply of lawyers for low-income people recognize that will never be enough. Moreover, as we discussed earlier, many legal problems experienced by poor people do not require lawyers but instead can be effectively resolved by individuals empowered with legal knowledge to navigate streamlined justice systems. A key component of expanding access to justice is therefore making it easier for people to achieve justice on their own terms. This Section introduces strategies to facilitate access to justice without lawyers under the rubric of “innovation,” which is a term embraced by the ABA to promote a suite of reforms to reduce barriers to self-help and increase reliance on nonlawyer assistance. In reality, innovation is a complex and sometimes controversial idea encompassing very different types of changes: from greater use of technology, like online programs and apps, to schemes to create more qualified nonlawyers and courthouse facilitators.
A key focus of the innovation movement is on using technology to better support pro se litigants, who are often marginalized by judges who view them as “not worth the time.” 202 This is a significant problem since, in courts that handle housing, bankruptcy, small claims, and family matters, parties without attorneys are often now the rule rather than the exception. Estimates suggests that as many as two-thirds of the litigants in state courts are proceeding pro se. In more than three-fourths of all civil trial cases in the United States, at least one party does not have a lawyer. 203
One area of rapid development is the creation of technological resources to equip pro se litigants with information about how to effectively use the court system. Toward this end, LSC has awarded $57 million in Technology Initiative Grants to 670 projects, which have created a range of web and app-based access to justice tools. 204 Examples include online interactive videos that walk people through filing procedures and common legal scenarios, as well as podcasts and 943 databases of document templates that use artificial intelligence to generate necessary forms based on input from users. 205 These projects join commercial enterprises, like Legal Genie, in attempting to bring legal knowledge to ordinary people at reduced cost. Artificial intelligence has also powered the development of legal “chatbots” that help people by asking targeted questions about their legal problems and then negotiating with relevant authorities on their behalf. These chatbot-driven programs gained attention when a Stanford graduate developed DoNotPay to help motorists challenge traffic tickets. 206 The technology has since been used to assist individuals applying for immigration visas and even making asylum claims. 207 To spur additional innovation in this space, some law schools are training students to design justice apps and the ABA has sponsored a “hack-a-thon” to incentivize students to create new technological breakthroughs. 208 All of these initiatives have raised questions among some bar leaders about whether they facilitate the unauthorized practice of law—questions addressed in Chapter 13.
Moving beyond information provision, there are (as mentioned in the preceding section on ADR) additional efforts to leverage technology to help resolve legal disputes. For example, lawyers have created online portals that allow people to file for “quickie divorces” and resolve other straightforward disputes without incurring the expense of meeting face-to-face with a lawyer. 209 Outside the United States, there are experiments in scaling up such online dispute resolution. British Columbia partnered with the commercial dispute resolution company Modria to create an online Resolution Center in which parties are guided through a mediation process, while the United Kingdom’s Civil Justice Counsel proposed a new online court system for low-value civil claims. 210 Such efforts are still in their infancy but suggest the degree to which justice systems of the future might seek to resolve more legal problems in virtual space.
The use of technology complements the movement to reduce barriers to accessing courts by reducing the procedural complexity of law and permitting nonlawyers to assist litigants in specified areas of practice.211 Efforts to promote “simplification” have focused on the goal of 944eliminating unnecessary legal forms, making essential forms easier to read and understand, ensuring forms are available in multiple languages, and reducing esoteric court rules and multi-step filing and hearing processes.212 Proponents of court reform have built on these recommendations to also suggest that, when help is necessary, it need not be from fully licensed lawyers in contexts in which basic support could be effectively provided at much lower cost by well-trained and regulated nonlawyers.213 A recent report documents the growth of court-based “nonlawyer navigator” programs that assist self-represented litigants with filling out and filing forms, processing legal information, and providing referrals to lawyers when needed. The report concludes that navigators “enhance the effectiveness of, and build public trust in, courts; [and] facilitate access to justice for [self-represented litigants] by helping them understand and navigate their cases,” though the report also acknowledges challenges of scale and coordination remain.214
Another significant challenge to nonlawyer assistance is regulatory. Again, as discussed in Chapter 13, many state bars have not supported incursions on the professional monopoly. Confronting this resistance, in 2019, the ABA’s Center for Innovation drafted a proposal to the House of Delegates that “encourages U.S. jurisdictions to consider regulatory innovations that have been adopted or are under review in a growing number of state supreme courts and that are also under study by state and local bar associations, such as the authorization and regulation of new categories of legal services providers.” 215 The proposal also calls for other types of regulatory “innovation,” including revisiting Rule 5.4’s prohibition on fee-sharing with nonlawyers, which it argues “impedes the development of innovative legal service delivery models, especially those that require the active involvement of other kinds of professionals, such as technologists, or that need substantial outside capital to succeed.” 216
Some commentators have called for bars to move beyond this focus on limited licensing schemes and multidisciplinary practice to rethink rules on marketing in order to help lawyers “design standardized products and services targeted to consumers’ discrete legal needs.” 217 According to this argument, “[b]ar associations must free themselves from capture by incumbents focused on their own short-term revenues and look for sustainable ways to improve the value of legal services for clients and consumers. They must build their capacity for industry 945 research, and engage with scholarly research, to promote new forms of assistance without sacrificing consumer protection.” 218
1.What is your view on how much courts and the bar should rely on nonlawyer navigators and other types of nonlawyer assistants to shoulder the burden of helping low-income litigants? A recent study suggests that Washington’s high-profile attempt to build a sustainable pipeline of limited license legal technicians (LLLTs) to support pro se litigants has met with little success, both because the cost of training has proven too high to entice law schools into the program, and because LLLTs who have gained licenses have nonetheless struggled to generate fees large enough to sustain their practice. Other studies raise questions about the effectiveness of nonlawyer assistance. One study based on 5000 unemployment insurance appeal hearings and interviews found that, while experienced nonlawyers can help parties navigate common court procedures and understand basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel claims, or advocate for law reform. 219
2.How far can technology and legal simplification go in bridging the justice gap? While some have argued against Civil Gideon on the ground that it would divert resources and attention away from more broad-based and sustainable pro se court reform, others counter that the “simplicity” movement may advance the illusion of change without achieving the goal of “substantive justice.” 220 Who do you think is right?
3.Who should take the lead in promoting the type of institutional and regulatory change advocated by proponents of innovation? Critics of the current innovation movement fault it for being led by “legal-aid and court-administration groups driven by their own views about what will best engage the community,” and instead promote a participatory design model that “involves actively consulting and collaborating with a wide range of stakeholders in a system to understand their perspectives and incorporate their priorities into system innovation.” 221 Professor Robert Gordon, reflecting on the history of access to justice in the United States offers a distinct perspective:
Professional organizations such as bar associations have always had a dual character: they are official spokesmen for the public aspirations of the profession to serve the ideals of the rule of law 946 and universal justice, and often sponsors of programs to make the ideals effective; but they are primarily guilds whose aim is to protect and expand monopoly domains for their members’ work, demand for their services, and their fees and profits. . . . Initiatives to make justice more accessible have been more likely, when they come, to originate with those marginal to or outside of the profession. 222
Taken together, do these views suggest that current bar efforts to promote innovation are misplaced? What would an access to justice movement based on participatory design look like and where should the energy for change come from?
1Aleksandr Solzhenitsyn, A World Split Apart, in Solzhenitsyn at Harvard 7–8 (1980).
2George W. Bush, Remarks on Medical Liability Reform, Univ. of Scranton, Scranton, Penn. Jan. 16, 2003, https://www.govinfo.gov/content/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg57.pdf.
3John Stossel, Parasitic Tort Lawyers, Real Clear Politics, July 7, 2010, https://www.realclearpolitics.com/articles/2010/07/07/parasitic_tort_lawyers_106211.html.
4For representative versions of such critiques, see Walter K. Olson, The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law (2002); Catherine Crier, The Case Against Lawyers (2002); and sources discussed in Deborah L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447 (2004). For discussion, see generally Thomas Burke, Lawyers, Lawsuits, and Legal Rights (2000); Robert A. Kagan, Adversarial Legalism: The American Way of Law (2001); Deborah L. Rhode, Access to Justice 24–46 (2004).
5After Solzhenitsyn and his publisher threatened to sue for copyright violations, the commentators filed a complaint alleging fair use. The case was settled when the publisher granted requests to reprint the address. See Ernest Lefever, Foreword, in Solzhenitsyn at Harvard, supra note 1.
6Jeff Jacoby, U.S. Legal Bubble Can’t Pop Soon Enough, Boston Globe, May 4, 2014.
7Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 Denv. U. L. Rev. 1, 79–80 (1993).
8See Miki Tanikaway, A Japanese Legal Exam that Sets the Bar High, N.Y. Times, July 10, 2011.
9 Derek C. Bok, A Flawed System of Law Practice and Training , 33 J. Legal Educ. 570, 573–74 (1983) .
10 Deborah L. Rhode, In the Interests of Justice 93 (2003) (quoting David Luban).
11Joe Palazzolo, Courtroom Surprise: Fewer Tort Lawsuits, Wall St. J., July 25, 2017, at A1, A10 (describing a poll conducted by Public Opinion Strategies in November 2016); Common Good, New Nationwide Poll: Most Voters Distrust Legal System, June 26, 2012, https://www.prnewswire.com/news-releases/new-nationwide-poll-most-voters-distrust-us-legal-system-160429725.html (describing a poll conducted by Clarus Research Group in June 2012).
12Burke, supra note 4, at 3; Rhode, supra note 4, at 456–57; Herbert M. Kritzer, Lawyer Fees and Lawyer Behavior in Litigation: What Does the Empirical Literature Really Say?, 80 Tex. L. Rev. 1943, 1981 (2002).
13See Clare Huntington, Staging the Family, 88 N.Y.U. L. Rev. 589, 644 (2013).
14Palazzolo, supra note 11, at A10.
15Lynn Langton & Thomas H. Cohen, Bureau of Justice Statistics, Civil Bench and Jury Trials in State Courts, 2005, at 10, tbl. 11 (Oct. 2008, rev. Apr. 2009).
16Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004).
17Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131, 2131–32 (2018). Interestingly, plaintiff win rates are also in eclipse. According to a recent study by Professors Alexandra Lahav and Peter Siegelman, from 1985 to 2017, plaintiffs’ win rate in federal court fell dramatically. Plaintiffs prevailed in roughly 70 percent of litigated cases in 1985, but they prevailed in only about 30 percent of such cases in 2017. Thus, between 1985 and 2017, plaintiffs’ odds of success were cut more than in half. See generally Alexandra Lahav & Peter Siegelman, The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 U.C. Davis L. Rev. 1371 (2019).
18Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093, 1102 (1996) (summarizing popular wisdom).
19 Deborah R. Hensler et al., RAND, Compensation for Accidental Injury in the United States 122 (1991).
20 Id . For a detailed discussion of why “injury victims seldom press claims against their injurers and almost never take legal action,” see David M. Engel, The Myth of the Litigious Society: Why We Don’t Sue (2016).
21See, e.g., David M. Studdert et al., Negligent Care and Malpractice Claiming Behavior in Utah and Colorado, 38 Med. Care 250, 253 (2000).
22Tom Baker, The Medical Malpractice Myth 114 (2005).
23William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis 183–227 (2004); Hilary Stout, Not Just a Hot Cup Anymore, N.Y. Times, Oct. 21, 2013.
24See generally Haltom & McCann, supra note 23.
25As one columnist recently complained: “To avoid legal liability, companies and institutions must comply with brain-numbing regulations and restrictions that destroy initiative, smother good ideas, and force grotesque results that benefit no one.” Jacoby, supra at 6. For additional discussion, see generally Philip K. Howard, Life Without Lawyers: Liberating Americans from Too Much Law (2009).
26Emery G. Lee III & Thomas E. Willging, Fed. Judicial Ctr., National Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules 35–36 (2009).
27See, e.g., Lawyers for Civil Justice et al., Litigation Cost Survey of Major Companies (2010); Bernard Black et al., Defense Costs and Insurer Reserves in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988–2004, 10 Am. L. & Econ. Rev. 185, 187, 204 fig.1 (2008) (showing that medical malpractice defense costs are on the rise).
28Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 824 (2011) (compiling information concerning transaction costs).
29Stephen J. Carroll et. al., RAND Asbestos Litigation (2005) (reporting on transaction costs in asbestos cases).
30Kagan, supra note 4, at 142–43.
31Frank B. Cross, Tort Law and the American Economy, 96 Minn. L. Rev. 28, 86 (2011).
32John Stossell, Protect Us from Legal Vultures, Wall St. J., Jan. 2, 1996, at A8.
33Stephen C. Dillard, Litigation Nation, Wall St. J., Nov. 25, 2006, at A9.
34Peter Ostler et al., Hype Outraces Facts in Malpractice Debate, USA Today, Mar. 5, 2003, at A1.
35Michelle M. Mello, Robert Wood Johnson Found., Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms (2006) (reviewing the relevant literature).
36See Nora Engstrom, “The Only Thing We Have to Fear Is Fear Itself”: How Physicians’ Exaggerated Conception of Medical Malpractice Has Become the Real Problem, Jotwell, Apr. 9, 2014, http://torts.jotwell.com/the-only-thing-we-have-to-fear-is-fear-itself-how-physicians-exaggerated-conception-of-medical-malpractice-liability-has-become-the-real-problem/; see also Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Tex. L. Rev. 1595, 1606–09 (2002).
37For unsafe products, see Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Law Legacy, 53 Wake Forest L. Rev. 293, 328–35 (2018); Peter A. Bell & Jeffrey O’Connell, Accidental Justice: The Dilemmas of Tort Law 189 (1997); Andrew D. Dyer et al., Dow Corning Corporation: Product Stewardship, in Cases on Leadership, Ethics, and Organizational Integrity: A Strategic Perspective 298 (Lynn Sharp Paine ed., 1996).
38Lawrence M. Friedman, Litigation and Society, 15 Annual Rev. Soc. 17, 26–27 (1989).
39Lawrence M. Friedman, Total Justice (1994).
40Robert A. Kagan, Do Lawyers Cause Adversarial Legalism?: A Preliminary Inquiry, 19 Law & Soc. Inquiry 1, 8 (1994).
41John P. Heinz et al., Urban Lawyers: The New Social Structure of the Bar 42–43 (2005).
42World Justice Project, Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World 13 (2019).
43World Justice Project: Rule of Law Index 28 (2019).
44David Ingram, Cutting to the Bone, Nat’l L.J., July 18, 2011, at 1; Karen Sloan, Perfect Storm Hits Legal Aid, Nat’l L.J., Jan. 2011, at 1, 4.
45See Katie Brenner, Justice Dept. Office to Make Legal Aid More Accessible Is Quietly Closed, N.Y. Times, Feb. 1, 2018.
46 Rebecca L. Sandefur, Accessing Justice in the Contemporary USA: Findings From the Community Needs and Services Study 3 (2014).
47Nora Freeman Engstrom, Bridging the Gap in the Justice Literature, Jotwell (May 6, 2013), https://torts.jotwell.com/bridging-the-gap-in-the-justice-gap-literature/.
48William L.F. Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 Law & Soc’y Rev. 631 (1980).
49Rebecca L. Sandefur, Access to What?, 148 Dædalus 49, 53 (2019).
50Marc Galanter, Justice in Many Rooms, in Access to Justice and the Welfare State 145, 150–51 (Mauro Cappelletti ed., 1981).
51John R. Emshwiller & Gary Fields, Justice Dispensed in Minutes as Petty Crimes Clog Courts, Wall St. J., Dec. 1, 2014.
52Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc’y Rev. 95 (1974).
53Gillian K. Hadfield, Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans, 37 Fordham Urb. L.J. 129, 135–42 (2010).
54Legal Services Corp., Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans (2009). The Center for American Progress reported that “funding shortages mean that only half of those who are eligible for and seek legal aid get help. While Legal Services Corporation programs aided 1.8 million Americans in 2013, another 1.8 million or more people were turned away.” Rebecca Buckwalter-Poza, Making Justice Equal 4 (Ctr. for Am. Progress 2016).
55Gillian K. Hadfield, More Markets, More Justice, 148 Dædalus 37, 38 (2019).
56Id. at 45–46; see also Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy (2016).
57Related strategies seek to reduce the need for expensive legal intervention and assistance by simplifying or modifying legal rules or processes. Examples include plain-English statutes, no-fault insurance schemes, standardized forms for simple wills and uncontested divorces, and automatic wage withholding for obligations such as child support.
58Rhode, supra note 4; see also Emory Brownell, Legal Aid in the United States 35, 84 (1951).
59Mark Walsh, A Sour Note from Gideon’s Trumpet, ABA J., Sept. 2011, at 14, 15 (quoting Edelman).
60Id. (quoting Barton).
61Lassiter, 452 U.S. at 35 (Blackmun, J., dissenting); id. at 59 (Stevens, J., dissenting).
62David Luban, Lawyers and Justice: An Ethical Study 263–64 (1988).
63Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172–73.
64Martha F. Davis, We Need a Civil Gideon, Nat’l L.J., Aug. 7, 2006, at 26; Airey v. Ireland, 2 ECtHR 305, 306–07 (1979) (requiring counsel where important interests are at stake and the complexity of the procedure or case make representation indispensable for effective access to the court).
65Earl Johnson, Lifting the “American Exceptionalism” Curtain: Options and Lessons from Abroad, 67 Hastings L.J. 1225 (2016).
66Clare Pastore, A Civil Right to Counsel: Closer to Reality?, 42 Loy. L.A. L. Rev. 1065, 1067–68 (2009); see also Am. Bar Ass’n Report to the House of Delegates No. 112A (2006); Laura K. Abel, Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws, 42 Loy. L.A. L. Rev. 1087 (2009); Brian Brophy, A Civil Right to Counsel Through the States Using California’s Efficient Project as a Model Toward a Civil Gideon, 8 Hastings Race & Poverty L.J. 39 (2011).
67Tonya L. Brito, The Right to Civil Counsel, 148 Dædalus 57, 56, 57 (2019).
68 Id.
69Deborah L. Rhode, Access to Justice: An Agenda for Legal Education and Research, 62 J. Legal Educ. 531 (2013).
70Brito, supra note 67, at 58.
71See Abel, supra note 66.
72The Public Justice Center, 2016 Annual Report 12, https://www.publicjustice.net/wp-content/uploads/2017/08/2016-PJ-AR-final.pdf.
73On homelessness, see Boston Bar Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention: A Report on the BBA Civil Right to Counsel Housing Pilots (2012); John and Terry Levin Center for Public Service and Public Interest, Stanford Law School, San Francisco Right to Civil Counsel Pilot Program Documentation Report (2014). On domestic violence, see Jennifer S. Rosenberg & Denise A. Grab, Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence (Inst. for Policy Integrity 2015).
74Tom Liniger, Exploring Strategies to Promote Access to Justice, 31 Geo. J. Legal Ethics 357, 361–62 (2018).
75Nat’l Ctr. for State Courts, The Landscape of Civil Litigation in State Courts (2005); see also Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 3 (2015).
76Rebecca L. Sandefur, The Impact of Counsel: An Analysis of Empirical Evidence, 9 Seattle J. for Soc. Justice 51, 52 (2010).
77D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?, 121 Yale L.J. 2118, 2124 (2012).
78Cassandra Wolos Pattanayak et al., The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013).
79D. James Greiner et al., How Effective Are Limited Legal Services Programs? A Randomized Experiment in a Massachusetts Housing Court (2012), https://www.povertyactionlab.org/sites/default/files/publications/3826_Legal%20assistance%20programs%2 0Mar2012.pdf.
80See Robert W. Gordon, Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History, 148 Dædalus 178 (2019).
81Rhode, Access to Justice, supra note 69; Bryant Garth, Neighborhood Law Firms for the Poor 19–20 (1980); Lee Silverstein, Eligibility for Free Legal Services in Civil Cases, 44 J. Urb. L. 549 (1967). To some legal aid attorneys, divorces also seemed to be a “luxury”; for the poor, desertion appeared “just as good.” Id. at 579–83.
82See Earl Johnson, Justice and Reform: The Formative Years of the American Legal Services Program 6–9 (1978). The ratio of lawyers to non-poor clients was approximately 1 to 560. Caseloads were as high as 2500 per legal services attorney.
83See Alan W. Houseman, Civil Legal Assistance for the 21st Century, 17 Yale L. & Pol’y. Rev. 369 (1998).
84For a chronology, see Brennan Ctr. for Justice, FY 2011 Appropriations Process for Civil Legal Services (2011).
85Matt Ford, What Will Happen to Americans Who Can’t Afford an Attorney?, Atlantic, Mar. 19, 2017.
86See Martha Bergmark, It’s Time for Candidates to Address the Justice Gap, Nat’l L.J., Oct. 10, 2016, at 22; Robert K. Vischer, The Trump Budget: Keep Civil Legal Aid Off the Chopping Block, Minneapolis Star Trib., Feb. 27, 2017.
87Legal Servs. Corp., By the Numbers: The Data Underlying Legal Aid Programs 12 (2018).
88David S. Udell, The Legal Services Restrictions: Lawyers in Florida, New York, Virginia, and Oregon Describe the Costs, 17 Yale L. & Pol’y. Rev. 337 (1998).
89Rhode, supra note 4, at 113–14.
90See Alan W. Houseman, Restrictions by Funders and the Ethical Practice of Law, 67 Fordham L. Rev. 2187 (1999); David Luban, Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers, 91 Cal. L. Rev. 209, 225–26 (2003).
91The triage pyramid, derived from the medical field, seeks to prioritize legal needs to provide individual services most efficiently while identifying cases to promote law reform. However, implementation is complex and does not neatly resolve questions about how to allocate resources between individual service and impact work. See Colleen F. Shanahan et al., Can a Little Representation Be a Dangerous Thing?, 67 Hastings L.J. 1367 (2016); Iain Robertson-Steel, Evolution of Triage Systems, 23 Emergency Med. J. 154 (2006).
92Stephen Wexler, Practicing Law for Poor People, 79 Yale L.J. 1049, 1049–53 (1970).
93See Anthony V. Alfieri, Practicing Community, 107 Harv. L. Rev. 1747, 1751 (1994); see also Gerald Lopez, Rebellious Lawyering (1992); Troy E. Elder, Poor Clients, Informed Consent, and the Ethics of Rejection, 20 Geo. J. Legal Ethics 989 (2007).
94Scott L. Cummings, Rethinking the Foundational Critiques of Lawyers in Social Movements, 85 Fordham L. Rev. 1987 (2017).
95Lopez, supra note 93; Rhode, supra note 4, at 118–21; Alan Houseman, Civil Legal Assistance for Low Income Persons: Looking Back and Looking Forward, 29 Fordham Urb. L. J. 1213, 1230 (2002).
96Model Rules of Prof’l Conduct R. 3.6 (Discussion Draft 1980).
97Richard A. Posner, Economic Analysis of the Law 511–15 (5th ed. 1998).
98Kenneth F. Boehm, The Legal Services Program: Unaccountable, Political, Anti-Poor, Beyond Reform and Unnecessary, 17 St. Louis U. Pub. L. Rev. 321 (1998). For similar criticisms, see sources cited in Rhode, supra note 4, at 108–10.
99George Will, One for Santa Ana, Wash. Post, May 7, 1995, at E5.
100The LSC FY 2020 budget is $415 million. Compare that, though, to the $3 billion Goldman Sachs set aside for pay and bonuses in 2019.
101Legal Servs. Corp., By the Numbers, supra note 87, at 42, 45.
102See Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1786, 1796 (2001); Carol Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Courts: Results of a Randomized Experiment, 35 Law & Soc’y Rev. 419 (2001).
103Along these lines, a report to the New York Chief Judge concluded that civil legal services funding generated over $1 billion for New York state, created more than 13,000 jobs, and “provided a return of $10 for everyone $1 of funding.” Permanent Commission on Access to Justice, Report to the Chief Judge of the State of New York 10 (2019), https://www.nycourts.gov/LegacyPDFS/19_ATJ-Comission_Report.pdf; see also Supreme Court of Pennsylvania, Pennsylvania Interest on Lawyers Trust Account Board, The Economic Impact of Outcomes Obtained for Legal Aid Clients Benefits Everyone in Pennsylvania (2012), https://www.paiolta.org/wp-content/uploads/2014/05/Economic-Impact-of-Legal-Aid.pdf. But see J.J. Prescott, The Challenges of Calculating the Benefits of Providing Access to Legal Services, 37 Fordham Urb. L.J. 303 (2010).
104Victor D. Quintanilla & Rachel Thelin, Indiana Civil Legal Needs Study and Legal Aid System Scan 4–5 (2019).
105Id. at 19.
106Id. at 5.
107For recommendations to enhance legal services delivery, see James J. Sandman, The Role of Legal Services Corporation in Improving Access to Justice, 148 Dædalus 113 (2019).
108Aspects of this problem are drawn from Edgar S. Cahn, Co-Producing Justice: The New Imperative, 5 UDC L. Rev. 105 (2000); Gary Bellow & Jean Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. Rev. 337, 343–44 (1978); Ethical Problems in Legal Services Cases (unpublished training materials, Western Ctr. on Law & Poverty, Apr. 7, 1994).
109Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415 (1984).
110Charles Kellogg, NAACP: A History of the National Association for the Advancement of Colored People (1967).
111Richard Kluger, Simple Justice (1976); Mark Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925–1950 (1987).
112Nan Aron, Liberty and Justice For All: Public Interest Law in the 1980s and Beyond (1989). In order to qualify for tax-exempt status, the organization must: provide representation of a broad public interest rather than a private interest; structure its decisionmaking through a board or committee representative of the public interest; receive financial support primarily from grants and contributions; accept only cases where the individuals or groups involved cannot afford, or do not have sufficient financial stakes to justify, the retention of private counsel. Lawyers may, however, accept fees from their clients under some circumstances. In private-party litigation between parties able to retain private counsel, tax-exempt public interest law firms are restricted to serving as amici curiae. See Rev. Proc. 92–59, 1992–2 C.B. 411.
113Laura Beth Nielsen & Catherine R. Albiston, The Organization of Public Interest Practice: 1975–2004, 84 N.C. L. Rev. 1591 (2006). This study estimated that about 1000 organizations fit its definition: nonprofit organizations that “employ at least one lawyer at least part time and whose activities (1) seek to produce significant benefits for those who are external to the organization’s participants and (2) involve at least one adjudicatory strategy.” Id. at 1601. For budgets and characteristics of leading public interest organizations, see Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 Stan. L. Rev. 2027 (2008).
114Scott Cummings, The Future of Public Interest Law, 33 U. Ark. Little Rock L. Rev. 355, 359 (2011).
115The Legal Foundation of Washington unsuccessfully challenged the use of IOLTA funding (Interest on Lawyers’ Trust Accounts) to subsidize legal services. Had the lawsuit been successful, it would have cut off the largest source of nonfederal funds for civil legal aid programs. See Brown v. Legal Found. of Washington, 538 U.S. 216 (2003).
116Aron, supra note 112, at 78; Houck, supra note 109.
117For broader definitions, see Cause Lawyers and Social Movements (Austin Sarat & Stuart Scheingold eds., 2006); Cause Lawyering: Political Commitments and Professional Responsibilities (Austin Sarat & Stuart Scheingold eds., 1998). For conservative organizations, see Steven M. Teles, The Rise of the Conservative Legal Movement (2008); Ann Southworth, Conservative Lawyers and the Contest over the Meaning of Public Interest Law, 52 UCLA L. Rev. 1223 (2005).
118See, e.g., Catherine Albiston, Democracy, Civil Society, and Public Interest Law, 2018 Wis. L. Rev. 187 (2019).
119For an insightful analysis of how LBGT rights lawyers used litigation in relation to public relations strategies, see Nan D. Hunter, Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign, 64 UCLA L. Rev. 1662 (2017).
120Susan D. Carle & Scott L. Cummings, A Reflection on the Ethics of Movement Lawyering, 31 Geo. J. Legal Ethics 447, 460 (2018).
121Id. For insightful analyses of these questions, see Anthony V. Alfieri, Things Fall Apart: Hard Choices in Public Interest Law, 33 Geo. J. Legal Ethics 335 (2018); Paul R. Tremblay & Baher Azmy, Case Study 3: Movement Lawyers and Community Organizers in Litigation: Issues of Finances and Collaboration, 47 Hofstra L. Rev. 43 (2018).
122Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003); Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America (2006).
123United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).
124Charles Sabel & William Simon, Destabilization Rights: How Public Law Succeeds, 117 Harv. L. Rev. 1015 (2004).
125Comment, The New Public Interest Lawyers, 79 Yale L.J. 1069, 1077 (1970) (quoting Gary Bellow).
126See Lopez, supra note 93; Lynn Jones, The Haves Come Out Ahead: How Cause Lawyers Frame the Legal System for Social Movements, in Cause Lawyers, supra note 117, at 182–83; Michael Diamond, Community Lawyering: Revisiting the Old Neighborhood, 32 Colum. Hum. Rts. L. Rev. 67 (2000).
127Scott L. Cummings, Movement Lawyering, 2017 Ill. L. Rev. 1645 (2017); see also Susan Carle, Progressive Lawyering in Politically Depressing Times: Can New Models For Institutional Self-Reform Achieve More Effective Structural Change?, 30 Harv. J.L. & Gender 323, 326 (2007); Rhode, Public Interest Law, supra note 113, at 20, 46–48.
128Comment, supra note 125, at 1072 (quoting Bellow) (tenants’ lawsuit that lost in the courts but convinced clients that they could force change through collective action). See Anthony Alfieri, Faith in Community: Representing Colored Town, 95 Cal. L. Rev. 1829 (2007); Scott L. Cummings, Law in the Labor Movement’s Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight, 95 Cal. L. Rev. 1927 (2007).
129Kenny Hegland, Beyond Enthusiasm and Commitment, 13 Ariz. L. Rev. 805, 813 (1971).
130This hypothetical is based on a controversy over San Jose’s proposed site for a stadium. The local chapters of the Sierra Club and the Audubon Society opposed the location. The quoted phrase is from Wetlands Committee Chairperson Tom Esperson in a Sierra Club Press Release (May 27, 1992).
131 Am. Bar Ass’n Comm’n on Professionalism, “ . . . In the Spirit of Public Service”: A Blueprint for the Rekindling of Lawyer Professionalism (1986).
132 Am. Bar Ass’n Standing Comm. on Pro Bono & Public Service, Supporting Justice IV: A Report on the Pro Bono Work of America’s Lawyers 7 (2018).
133 Ronit Dinovitzer et al., After the JD III: Third Results of a National Study of Legal Careers 38 (2014).
134Am. Bar Ass’n, Variations of the ABA Model Rules of Professional Conduct (Sept. 29, 2017).
135For compliance rates, see Leslie Boyle, Meeting the Demands of the Indigent Population: The Choice Between Mandatory and Voluntary Pro Bono Requirements, 20 Geo. J. Legal Ethics 415, 425 (2007).
136For extended arguments, see Deborah L. Rhode, Pro Bono in Principle and in Practice (2005); Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. Rev. 1 (2004).
137Esther F. Lardent, Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question, 49 Md. L. Rev. 78, 100–01 (1990).
138For variations in pro bono based on the context of practice, see Robert Granfield, The Meaning of Pro Bono: Institutional Variations in Professional Obligations Among Lawyers, 41 Law & Soc’y Rev. 113 (2007). For the need for evaluation, see Deborah L. Rhode, Rethinking the Public in Lawyers’ Public Service: Pro Bono, Strategic Philanthropy, and the Bottom Line, 77 Fordham L. Rev. 1435 (2009).
139National Pro Bono, Am. Lawyer, July 1, 2015.
140Susan Beck, Trump’s Election: A Pro Bono Boon, Nat’l L.J., Jan. 23, 2017.
141Brenda Sapino Jeffreys, On the Path to Pro Bono Success, Large Firms Have Plenty to Navigate, Am. Lawyer, July 2019.
142Thomas J. Plofchan, Letter to the Editor, Wash. Post, Jan. 23, 1991, at A16.
143David Luban, Faculty Pro Bono and the Question of Identity, 49 J. Legal Educ. 58, 66 (1999) (“[H]ow can law faculties teach professionalism successfully if our own approach to pro bono is that we wouldn’t touch it with a ten-foot pole?”).
144Florida, the first state to require reporting, initially saw substantial increases in pro bono contributions. However, since 2000, participation rates have not increased and are lower than national averages. Kelly Carmody & Assoc., Report for the Florida Supreme Court and the Florida Bar’s Standing Committee on Pro Bono Legal Services, Pro Bono: Looking Back, Moving Forward 1, 9 (2008). In Maryland, about half of lawyers reported some pro bono participation, but only a fifth donate at least fifty hours. Key Findings from 2017 Maryland Pro Bono Reporting Results, https://mdcourts.gov/sites/default/files/import/probono/pdfs/keyfindingsprobonoreport2017.pdf. Participation rates in other states with mandatory reporting vary, as do implementation structures.
145Atinuke O. Adediran, The Relational Costs of Free Legal Services, 55 Harv. C.R.-C.L. L. Rev. (forthcoming 2020) (showing that institutional relationships with firms cause nonprofit legal services organizations to gear their work toward law firm demands for pro bono).
146Mark Pullman, White Shoe Social Justice Warriors: The Pro Bono Racket, Misrule of Law, Oct. 16, 2018, https://misruleoflaw.com/2018/10/16/white-shoe-social-justice-warriors-the-pro-bono-racket/.
147See Steven A. Boutcher, Lawyering for Social Change: Pro Bono Publico, Cause Lawyering, and the Social Movement Society, 18 Mobilization 179 (2013).
148Corporate Pro Bono, CPBO Challenge Report 2018: The Expansion of In-House Pro Bono 10 (2018); Rebecca Lowe, Can Corporates Do Pro Bono?, 7 In-House Perspective 15 (2011).
149Dinovitzer et al., After the JD III, supra note 133, at 39.
150Erica M. Spitzig, License to Serve: Reevaluating Multijurisdictional Pro Bono Rules for In-House Counsel, 21 Geo. J. Legal Ethics 1081 (2008).
151See Philip R. Lochner, Jr., The No Fee and Low Fee Legal Practice of Private Attorneys, 9 Law & Soc’y Rev. 431 (1975).
152Luz E. Herrera, Community Law Practice, 148 Dædalus 106, 107 (2019).
153David L. Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev. 735, 739–49 (1980).
154Id. at 749–62; Michael Millemann, Mandatory Pro Bono in Civil Cases: A Partial Answer to the Right Question, 49 Md. L. Rev. 18, 33–35 (1990).
155See Carrie Menkel-Meadow, Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution, in The Handbook of Dispute Resolution 13–31 (Michael L. Moffit & Robert C. Bordone eds., 2005).
156Jacqueline M. Nolan-Haley, Introduction: Lawyers’ Ethics in ADR, ADR and the Professional Responsibility of Lawyers, 28 Fordham Urban L.J. 891 (2001).
157Frank E. A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 Negotiation J. 49, 60 (1994) (crediting the phrase to Maurice Rosenberg).
158Lon Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978); Lon Fuller, Mediation: Its Forms and Functions, 44 S. Cal. L. Rev. 305 (1971).
159Comm’n on Professionalism, supra note 131, at 41 (quoting Chief Justice Burger).
160Deborah Hensler, Our Courts: Ourselves: How the Alternative Dispute Resolution System is Re-Shaping Our Legal System, 108 Penn. State L. Rev. 165, 167 (2018).
161Alternative Dispute Resolution Act of 1998, Pub. L. No. 105–315, § 2, 112 Stat. 2993 (codified at 28 U.S.C. §§ 651–58).
162See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018); Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013); AT&T Mobility v. Concepcion, 563 U.S. 333 (2011); Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).
163For an overview, see Fed. Judicial Ctr., Guide to Judicial Management of Cases in ADR (2001); Carrie Menkel-Meadow, Dispute Processing and Conflict Resolution: Theory, Practice, and Policy (2003).
164Robert C. Burdone, Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes, 21 Ohio St. J. on Disp. Resol. 1, 6–7 (2005) (discussing different objectives).
165See Jessica Silver-Greenberg & Michael Corkery, In Arbitration, a Privatization of the Justice System, N.Y. Times, Nov. 1, 2015, at A1.
166Greg Berman & John Feinblatt, Problem Solving Courts: A Brief Primer (2001); Margot Lindsay & Mary K. Shilton, The Public Is Willing, 29 Fordham Urb. L.J. 1267, 1270 (2002).
167Noam Ebner & John Zeleznikow, No Sheriff in Town: Governance for Online Dispute Resolution, 32 Negotiation J. 297, 298, 319 (2016); Daphna Lavi, No More Click? Click in Here: E-Mediation in Divorce Disputes—The Reality and the Desirable, 16 Cardozo J. Conflict Resol. 479, 484 (2015); Melissa Conley Tyler & Mark McPherson, Online Dispute Resolution and Family Disputes, 12 J. Family Stud. 1, 6–7 (2006);.
168Jason Krause, On the Web, ABA J., Oct. 2007, at 43–45; see also Ethan Katsh, Bringing Online Dispute Resolution to Virtual Worlds: Creating Processes Through Code, 49 N.Y. L. Sch. L. Rev. 271 (2004).
169See generally Thomas J. Stipanowich, Arbitration: The “New Litigation,” 2010 U. Ill. L. Rev. 1 (2010).
170Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration 1, 2 (2018); Imre S. Szalai, The Failure of Legal Ethics to Address the Abuses of Forced Arbitration, 24 Harv. Negot. L. Rev. 127, 130, 142 (2018); Alexia Fernández Campbell, Female Law Students Pressure Firms to Stop Banning Sexual Harassment Suits, Vox, Dec. 3, 2018.
171See supra note 162 (collecting citations).
172Silver-Greenberg & Corkery, supra note 165 (quoting Anthony Kline).
173Id. (quoting Victoria Pynchon).
174Alexander J. S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Stud. 1 (2011); Alexander J.S. Colvin, Mandatory Arbitration and Inequality of Justice in Employment, 35 Berkeley J. Emp. & Lab. L. 71 (2015).
175Public Citizen, The Arbitration Trap: How Credit Card Companies Ensnare Consumers 29 (2007).
176Lauren Guth Barnes, How Mandatory Arbitration Agreements and Class Action Waivers Undermine Consumer Rights and Why We Need Congress to Act, 9 Harv. L. & Pol’y Rev. 329, 341 (2015); see id. at 340 (reviewing the literature and concluding: “When they do use arbitration, consumers are both far less likely to win their claims and awarded a fraction of what companies receive when they win.”).
177Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times, Oct. 31, 2015, at A1.
178See Szalai, supra note 170, at 132; Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013); Barnes, supra note 176; Jim Lardner, A Corporate Get Out of Jail Free Card, U.S. News, Sept. 6, 2013.
179CFPB Study Finds That Arbitration Agreements Limit Relief for Consumers, CFPB, Mar. 10, 2015, http://www.consumerfinance.gov/newsroom/cfpb-study-finds-that-arbitration-agreements-limit-relief-for-consumers/.
180Silver-Greenberg & Gebeloff, supra note 177, at A1.
181Id.
182Id.
183Silver-Greenberg & Corkery, supra note 165.
184Carrie Menkel-Meadow, Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not, 56 U. Miami L. Rev. 949 (2002); Symposium: ADR and the Professional Responsibility of Lawyers, 28 Fordham Urb. L.J. 891–991 (2001).
185Silver-Greenberg & Corkery, supra note 165.
186Ebner & Zeleznikow, supra note 167, at 306–07.
187Id. at 309 (reviewing efforts and impact); Leah Wing, Ethical Principles for Online Dispute Resolution: A GPS for the Field, 3 Int’l J. Online Dispute Resol. 12 (2016) (proposing principles).
188Id. at 308 (quoting draft resolution).
189Fresh Air, Have We Lost a Constitutional Right in the Fine Print?, NPR, Nov. 12, 2015 (interviewing Jessica Silver-Greenberg).
190Szalai, supra note 170, at 167–78. An example of such a one-sided clause was held unenforceable in Hooters of Am., Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999). The clause required employees to provide detailed facts and disclose witnesses, while not imposing reciprocal requirements on Hooters. The clause also gave Hooters, but not employees, a right to vacate an award on proof that it exceeded the arbiter’s authority. The agreement also gave only Hooters the right to cancel or modify the arbitration agreement at any time.
191Letter from U.S. Senators to Andy Slavitt, Sept. 23, 2015.
192ABA H.D. Resolution 300 (Aug. 2018).
193Angela Morris, Why 3 Big Law Firms Ended Use of Mandatory Arbitration Clauses, ABA J. (June 2018).
194Morris, supra note 193; Dan Packel, DLA Piper Clings to Mandatory Arbitration—But Not Louis Lehot as Students Show Clout, Law.com, Oct. 15, 2019, https://www.law.com/americanlawyer/2019/10/15/dla-piper-clings-to-mandatory-arbitration-but-not-louis-lehot-as-students-show-clout/?slreturn=20200311100608.
195Samuel Turner, Law Students Protest Forced Arbitration, Yale Daily News, Apr. 11, 2019.
196Packel, supra note 194 (quoting DLA Piper statement).
197For a description of the Nicaraguan program, see Jean R. Sternlight, Is Alternative Dispute Resolution Consistent with the Rule of Law? Lessons from Abroad, 56 DePaul L. Rev. 560, 577–78 (2007).
198Since the 1990s, the World Bank alone has sponsored several hundred projects, which have spent almost $3 billion. David M. Trubek, “The ‘Rule of Law” in Development Assistance: Past, Present, and Future, in The New Law and Economic Development: A Critical Appraisal 74 (David M. Trubek & Alvaro Santos eds., 2006).
199Stephanie Strom, When “Liking” a Brand Online Voids the Right to Sue, N.Y. Times, Apr. 16, 2014, at B1 (for the “broken glass” quote); Barnes, supra note 176, at 349 (for the “Trix” quote).
200Stephanie Strom, General Mills Amends New Legal Policies, N.Y. Times, Apr. 17, 2014, at B2; Stephanie Strom, General Mills Reverses Itself on Consumers’ Right to Sue, N.Y. Times, Apr. 20, 2014, at A17.
201Szalai, supra note 170, at 181; see Ending Forced Arbitration of Sexual Harassment Act of 2017, S. 2203, 115th Cong. (2018); Forced Arbitration Injustice Repeal Act of 2019, S. 610, 116th Cong. (2020).
202 Debra Cassens Weiss, Posner: Most Judges Regard Pro Se Litigants as ‘Kind of Trash Not Worth the Time’ , ABA J., Sept. 11, 2017 (quoting Judge Richard Posner).
203 Deborah L. Rhode & Scott L. Cummings, Access to Justice: Looking Back, Thinking Ahead , 30 Geo. J. Legal Ethics 485, 490 (2017) . For discussion of how pro se status influences stereotypes of claimants and diminishes settlements, see Victor D. Quintanilla et al., The Signaling Effect of Pro Se Status , 42 Law & Soc. Inquiry 1091 (2017) .
204 James E. Cabral et al., Using Technology to Enhance Access to Justice , Harv. L. Rev . 241, 244 (2012); Legal Services Corp., Technology Initiative Grant Program (2017).
205 Cabral et al., supra note 204, at 247, 251.
206 Victor Li, Joshua Browder: His ‘Chat’ Is Not Just Talk , ABA J., Sept. 14, 2017; Teke Wiggin, Lawyer Bots Take the Hassle Out of Fighting Parking Tickets and Property Taxes—and Could Cost Local Governments Real Revenue , Recode , Apr. 5, 2018.
207 Jane Kaplan, Breaking Down the Barriers: Bringing Legal Technicians into Immigration Law , 32 Geo. J. Legal Ethics 703 (2019) .
208Tanina Rostain, Robots Versus Lawyers: A User-Centered Approach, 30 Geo. J. Legal Ethics 559 (2017).
209 Amy Sohn, Angelina Jolie’s Lawyer Now Offers Quickie Divorces Online , N.Y. Times , Feb. 3, 2018.
210 Civil Justice Council, Dispute Resolution for Low Value Civil Claims (2015); Michael J. Wolf, Collaborative Technology Improves Access to Justice , 15 N.Y.U. J. Legis. & Pub. Pol’y 759, 780 (2013) .
211Rebecca L. Sandefur, The Impact of Counsel: An Analysis of Empirical Evidence, 9 Seattle J. for Soc. Justice 51, 52 (2010) (“One factor that seems to shape variation in the magnitude of lawyers impact is procedural complexity. . . .”).
212Richard Zorza, Some First Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation, 61 Drake L. Rev. 845 (2013).
213 Rebecca L. Sandefur & Thomas M. Clarke, Designing the Competition: A Future of Roles Beyond Lawyers? The Case of the USA , 63 Hastings L.J. 1467 (2016) .
214 Mary E. McClymont, Nonlawyer Navigators in State Courts: An Emerging Consensus (Georgetown Justice Lab 2019).
215 Am. Bar Ass’n Ctr. for Innovation, Report to the House of Delegates 1 (2019).
216 Id. ; accord Utah Work Group on Regulatory Reform, Narrowing the Access-to-Justice Gap by Reimagining Regulation (Aug. 2019) (advocating a new “regulatory sandbox” freeing up lawyers to compete more through nonlawyer ownership and other reductions in regulation).
217Elizabeth Chambilss, Marketing Legal Assistance, 148 Dædalus 98, 102 (2019).
218Id. at 103.
219Anna E. Carpenter et al., Trial and Error: Lawyers and Nonlawyer Advocates, 42 Law & Soc. Inquiry 1023 (2017); see also Marsha M. Mansfield, Litigants Without Lawyers: Measuring Success in Family Court, 67 Hastings L.J. 1389, 1412–16 (2016) (finding that, although many pro se litigants provided law student support through court-based clinic were satisfied with the outcome, 44 percent the felt need for additional assistance).
220 Ben Barton, Against Civil Gideon (and for Pro Se Court Reform) , 62 Fla. L. Rev . 1227 (2010) ; Katheryn A. Sabbeth, Simplicity as Justice , 2018 Wis. L. Rev . 287 (2018) .
221 Margaret Hagan, Participatory Design for Innovation in Access to Justice , 148 Dædalus 120, 121–22 (2019).
222 Gordon, supra note 80 , at 187.
Today’s law students are acutely aware that the route to bar admission requires that they typically pass a grueling examination of legal doctrine and demonstrate their “moral fitness” to practice law. Although most law graduates in most jurisdictions jump over these hurdles, they impose significant financial and psychological costs and disproportionately exclude less privileged applicants. The moral character application for bar admission, in particular, can delay and deter applicants with prior offenses or mental health difficulties that bear little relationship to current fitness for practice. This chapter explores the origins and contemporary operation of the bar admission process, focusing on the justifications for the bar examination and moral character requirements and the tradeoffs they impose. The chapter also examines the challenge facing lawyers whose practice takes them outside of the state in which they have passed the bar. In an era of increasingly multijurisdictional practice, how should states treat lawyers whose client relationships require work outside the state where they are admitted?
For much of its history, the American bar made relatively little effort to ensure adequate qualifications among its members. As Chapter 3 noted, the courts traditionally asserted inherent power to regulate the practice of law, including authority to determine who could appear before them. However, until the twentieth century, formal admission standards were lax. Courts required applicants to demonstrate “fitness to practice” but generally that involved only perfunctory oral exams and/or some limited period of preparation. The absence of any legal degree requirement reflected both the inaccessibility and inadequacy of professional training in early universities and the legacy of English traditions. England placed responsibility for legal instruction under independent Inns of Court rather than academic institutions. Although some eighteenth-century Americans traveled to the Inns in England, the training they received there during this period was not extensive. Moreover, most practitioners who could afford neither study abroad nor enrollment in an American university prepared through apprenticeships. 1
This system left much to be desired. The conventional arrangement was for aspiring attorneys to offer their services plus a fee to established lawyers in exchange for instruction and the right to use their masters’ 948 legal forms later in practice. In an era before typewriting, preprinted forms, and duplicating services, students often spent most of their apprenticeships copying writs and documents. Not only were such training experiences extremely tedious, they offered little chance for broader inquiry. All too often, the only opportunities for less technical instruction came through independent reading of treatises and other materials not intended as textbooks. Although a few law schools emerged in the late eighteenth century to supplement such instruction, they remained few in number and limited in scope until after the Civil War.
In the excerpt that follows, J. Willard Hurst describes the evolution of more formal admission requirements.
J. Willard Hurst, The Growth of American Law
256, 277–84, 292–93 (1950).
Indeed, over most of our history there were no official standards of preparation for the bar, and such standards as existed in fact were largely the product of the schools’ traditions. . . . [By] 1860 only 9 of 39 states and territories had even nominal requirements of professional preparation. By 1890 nearly one half, by 1920 about three fourths, and by 1940 all states required some professional study preparatory to admission. The spread of this requirement was gradually attended by a lengthening of the period of professional preparation, up to the three-year requirement which by 1940 was fixed in forty states. . . .
The examination was throughout the main official instrument for enforcing standards of preparation for the bar. Before 1870 it was typically oral. In any case, oral or written, it was administered with casual leniency; the approach was characteristic of times and communities that were close enough to the frontier so that they had no awe of formality or specialized knowledge, and small enough so that personal acquaintance and relationships were a substantial check on conduct. . . .
Before 1890 only four states had boards of bar examiners, and in no more than half a dozen had written examinations been used. However, when the leading law schools began to use the written examination, this encouraged adoption of the practice in the states, where it became the invariable method of examination after 1900. . . . [However, surveys] showed that about 90 per cent of all who applied from 1922 to 1925 eventually passed. . . .
Education, admissions policy, and organization wove together to form main strands in the character of the bar in the United States. The history of admissions policy and bar organization created a challenge to legal education. [In the nineteenth century, the] decline in admissions standards, and the disappearance of dominant local bar associations, gave the law schools the opportunity to assert a leadership in regard to 949 bar standards and law reform that was without parallel in the Anglo-American legal world.
Although bar examinations have an extended history, their early forms bear little resemblance to their modern versions. Before the Civil War, exams were typically oral and were administered by state judges or attorneys appointed by the court on an ad hoc basis. The procedures governing these examinations were often quite informal, as the following description of an examination conducted by Abraham Lincoln suggests. The candidate, Jonathan Birch, encountered Lincoln in a hotel room, in the process of taking a bath, which continued during the interview. According to Birch:
[Lincoln] asked in a desultory way the definition of a contract, and two or three other fundamental questions, all of which I answered readily, and I thought, correctly. Beyond these meager inquiries, as I now recall the incident, he asked nothing more. Meanwhile, sitting on the edge of the bed he began to entertain me with recollections—many of them characteristically vivid and racy—of his own practice and the various incidents and adventures that attended his start in the profession. The whole proceeding was interesting yet so unusual, if not grotesque, that I was at a loss to determine whether I was really being examined or not. 2
Eventually, Lincoln sent Birch off with a note to the other member of the Springfield examining committee, who admitted him without further inquiry. The note read: “The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He’s a good deal smarter than he looks to be. Yours, Lincoln.” 3
In the late nineteenth century, states attempted to upgrade standards by establishing boards of bar examiners and requiring written exams. However, most early examiners were part-time or short-term employees, with limited expertise. The tests they devised usually demanded only rote learning and basic literacy—and all but a small minority of candidates ultimately passed. 4 Moreover, in many jurisdictions, a major impetus for screening candidates was not competence per se, but public image. Elite members of the bar often saw examinations as a means of stemming the tide of lower-class applicants, 950 particularly religious and ethnic minorities, whose inadequate command of the “King’s English” threatened to debase the profession’s status. 5
In 1931, a National Conference of Bar Examiners was created to upgrade standards, as well as to promote cooperation among the states. Partly as a result of Conference efforts, examinations over the next half century became more uniform and comprehensive. The development of a multistate multiple choice test in core subjects reflected and accelerated this trend. Yet whether this trend is to be welcomed, and whether bar exams in their current form are an appropriate means of assessing competence, remain matters of considerable dispute.
The bar examination has often been challenged on both legal and policy grounds. Courts have rejected constitutional claims based on racially disparate impact and on the arbitrariness of grading standards. 6 In Richardson v. McFadden , 540 F.2d 744 (4th Cir. 1976) , the Fourth Circuit Court of Appeals rejected a challenge to the South Carolina Bar exam on grounds that it disproportionately excluded black applicants and was not demonstrably job related. At trial, the evidence of the exam’s validity consisted of testimony by individual bar examiners that they were successful practitioners and that they believed that the questions were relevant to the applicant’s competence to practice law, and that bar exam performance correlated with law school grades. Evidence was also introduced to validate the grading system, which for some examiners consisted of their overall assessment of the exam, and assignment of a single numerical grade, with seventy as a passing score. Other examiners assigned points to particular parts of questions and compiled those points. The court conceded the subjectivity of the system but did not find it so “unrelated to the State’s objectives as to violate the Equal Protection Clause.” 7 Despite such holdings, criticism of bar exams persists on several levels.
The most fundamental objection is that the capabilities that exams measure do not assess most of the skills necessary for competent practice. Standardized testing places a high premium on rote memorization and the ability to function under extreme time pressure. Most exams assess only a few of the essential core competencies identified by the ABA’s blue ribbon (MacCrate) Commission on Law Schools and the Profession: legal 951 analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and dispute resolution procedures, organization and management of legal work, and recognizing and resolving ethical issues. 8 Although most states have made some effort to supplement standard multiple choice and essay questions with some skills assessment, and the Multistate exam includes a performance component, the exam still focuses on mastery of general doctrine. As the MacCrate Commission noted:
[T]he traditional bar exam does nothing to encourage law schools to teach and law students to acquire many of the fundamental lawyering skills. . . . [If anything,] the examination influences law schools, in developing their curricula, to overemphasize courses in the substantive areas covered by the examination at the expense of courses in the area of lawyering skills. 9
Reports by the Conference of Chief Justices and the Society of American Law Teachers have come to similar conclusions. 10 The problem is compounded by pressure that law faculty often feel to teach to the test, rather than to focus on material that would ultimately prove more valuable.
The result, according to critics, is to encourage a superficial knowledge of selective fields, which creates a false sense of complacency among successful applicants and the general public. 11 As James Moliterno argues, the “current typical bar exam tests too much and too little.” 12 It requires too much memorization of doctrine from too many legal fields, while failing to assess applicants’ practical skills. Much of the information memorized will be forgotten after the exam or will be irrelevant to the contexts in which applicants practice. 13
Others point out that this screening method is also both over- and under-inclusive. The current admission requirements exclude individuals with experience and practice skills who could provide assistance for routine needs, while providing no assurance that those who pass law school and bar exams are, or will remain, competent in their chosen fields of specialty.
952An additional problem, according to critics, involves the arbitrariness of grading procedures and their adverse impact on diversity in the profession. As Deborah Rhode has observed:
Although bar exams do measure some relevant skills, the current grading system does not capture relevant distinctions. No effort has been made to correlate performance on admission exams with performance in practice. The most that bar officials can establish is a correlation between examination scores and law school grades. That relationship is scarcely surprising, since both measure similar skills. How well either predicts success as a lawyer is something else again, and has yet to be demonstrated. Charles Evans Hughes failed the New York bar exam six times and later became Chief Justice of the United States Supreme Court, and the list of less celebrated failures is extensive.
The inadequate link between exam and job performance is of special concern because minority applicants have disproportionately low passage rates. Part of the problem is that these applicants are least able to afford the time and expense of bar review courses and multiple attempts at passing. Although courts have rejected claims that the exam process is racially discriminatory and insufficiently predictive of competence in practice, their reasoning has relied on evidence that they have found deficient in other occupational contexts: unsupported testimony by administrators who believe that their questions are unbiased and relevant. But even assuming that exam performance demonstrates some necessary lawyering skills, the current grading process is arbitrary at best. One California study found that a third of bar examiners disagreed about whether a particular set of answers failed or passed, and that a quarter of examiners, when presented with the same paper a second time, reversed their earlier decision.
The selection of passing scores raises further difficulties. States that use the same multiple choice tests vary considerably in their selection of passing scores and in their ratios of successful to unsuccessful applicants. The percentage of candidates who pass ranges from the 30s to the 90s. Unsurprisingly, success rates tend to be lowest in the states with the greatest concentrations of lawyers, where new competitors are particularly unwelcome. By contrast, other jurisdictions pass . . . a high proportion of candidates. . . . No evidence suggest that these states experience exceptional problems with lawyer performance. If states swapped cut-off scores, the majority of applicants passing the bar in permissive jurisdictions would fail, and the majority of those failing in stringent jurisdictions would pass. So too, as statisticians point 953 out, higher grading standards do not guarantee higher competence in a system where about 95 percent of candidates who keep taking the exam eventually pass. In states with low success rates, students simply “study harder” and more applicants have to take the test multiple times. 14
Although most states do not collect statistics on the race of successful and unsuccessful bar applicants, those that do have found substantial racial and ethnic differences, as did the only national study. That survey by the Law School Admission Council reported eventual bar exam pass rates of 78 percent for African-Americans and 96 percent for white applicants; the rates for other minority racial and ethnic groups were 8 to 15 percent lower than for white test takers. So too, a higher proportion of African-Americans than whites who fail the first time do not take the test again: 11 percent versus 2 percent. 15 More recent state data reflect similar disparities. 16 The reasons for these differential success rates are not entirely clear, but many experts believe that the extent of the variance does not reflect underlying competence. Other explanations include racial disparities in the learning experiences of law students and the stigma of lower exam success rates, which constitutes a stereotype threat adversely affecting performance. 17
The problems of justifying passing scores emerged clearly in an antitrust suit against the Arizona Board of Bar Examiners. In Hoover v. Ronwin , 466 U.S. 558 (1984) , an unsuccessful bar applicant claimed that the Board’s practice of setting passing scores after exams were graded constituted an anticompetitive effort to limit the number of licensed attorneys and thus violated the Sherman Antitrust Act. The United States Supreme Court rejected that claim. Under the majority’s analysis, the administration of bar admission procedures occurred under Arizona Supreme Court auspices and therefore fell within the Act’s state action exemption. However, the majority also acknowledged the subjectivity involved in the choice of passing grades: “By its very nature, therefore, 954 grading examinations does not necessarily separate the competent from the incompetent or—except very roughly—identify those qualified to practice and those not qualified. At best, a bar examination can identify those applicants who are more qualified to practice law than those less qualified.” 18 Note that a recent United States Supreme Court case may call into question the antitrust exemption for state bar licensing relied on in Hoover . In North Carolina Board of Dental Examiners v. Federal Trade Comm’n , 574 U.S. 494 (2015) , the Court held that the North Carolina state dental licensing board could not claim an antitrust exemption when a majority of the board were themselves licensed dentists—unless the board was subject to active supervision by the state. Some commentators have begun to ask whether the logic of Board of Dental Examiners might be used to curtail the bar’s power to limit who can practice law. 19
A final criticism of the current testing system involves its other costs. These include the time and effort spent on bar review cram courses, the inhibition of interest in law school work that does not aid exam preparation, and the barriers to practitioners’ mobility across state lines. 20 If the bar exam system is justifiable despite these costs because it measures basic competence, critics question why graduation from an accredited school is also required. Conversely, if the test does not adequately screen for competence, why require it in addition to law school? 21
In response, defenders of bar exams advance several arguments. First, they defend the test as a relatively inexpensive way to make standardized anonymous evaluations of basic legal knowledge. It also provides an incentive for students to synthesize information, to familiarize themselves with local law, to improve writing and analytic skills, and to recognize legal issues in areas outside their expected specialty. 22 As one examiner put it: “By ensuring that candidates admitted to practice have achieved a reasonable level of competence in applying professional skills to commonly encountered practice problems, the bar examination requirement and educational requirement are expected to control one threat to the overall quality of practice—the threat posed by practitioners who lack basic competencies.” 23 To the 955 extent that current bar exams do not promote a useful learning experience, defenders wish to improve, not eliminate, testing procedures.
Second, defenders insist that if the bar exam were discarded, the likely alternative would be worse. Assessments relying on personal demonstration of practice skills increase expense, inconsistency, and the potential for bias. Alternatively, a diploma privilege admitting all graduates of ABA-approved law schools might lead to more interference with those schools’ curricular offerings, or graduation and admission requirements. Given faculty members’ disinclination to fail students, elimination of the bar exam might leave no significant screening device for minimal competence. 24 It may, in part, be these concerns, together with a sense of hard-won entitlement among admitted practitioners, that have blocked impetus for significant change.
Robert Fellmeth, a Professor of Public Interest Law, consumer advocate, and former independent monitor of the California Disciplinary System, has delivered a blistering critique of the California bar exam. 25 His critique raises four principal concerns. First, the bar exam, unlike the entry exam of every other California agency, has not been job validated. Second, recent passage rates are lower than that of all but one other state and are about half the level of most other major states, including New York. Nearly seven in ten applicants failed the February 2019 exam. 26 Yet California test takers have higher than the national median Multistate Bar Exam results. 27 Third, the exam tests only current knowledge, unlike other exams, including medical licensing tests, which must be retaken at stated intervals. Finally, the state supreme court has relied too much on “market practitioners” instead of engaging in the “active supervision” required by antitrust doctrine to insulate anticompetitive activities from liability.
If you were a member of the California Supreme Court chairing a task force on the bar exam, what questions would you ask, what evidence would you demand, and what reforms might you consider?
2.Reforms: Efforts and Proposals
In recent years, the ABA Council of the Section on Legal Education and some states have made modest efforts at reform. The Council’s law school accreditation standards now require that schools must get at least 956 three quarters of their graduates to pass the bar exam within two years. 28 A few have expanded their reciprocal admission procedures to waive exam and other requirements for lawyers from states that extend the same waivers to others with comparable provisions. One recommendation, by a Tri-State Task Force of Maine, New Hampshire, and Vermont bar leaders and educators, would replace the bar exam with a comprehensive educational program designed to improve lawyer competence through in-depth skills training and evaluation. 29 New Hampshire has approved a program permitting a small number of students to complete a coordinated sequence of courses in the state’s only law school and to submit to periodic skills-based assessments by a committee, comprised of representatives from the state courts, the faculty, the practicing bar, and the Board of Bar Examiners, in lieu of the traditional exam. 30 Another proposal is an exam that would test a small number of core areas; beyond that, the applicant could be tested in greater detail in the specialties of his or her choice. 31
Some commentators have also proposed licensing systems modeled on those in other countries or other professions. The United States is almost alone among other advanced industrial nations in admitting practitioners on the basis of written exams without skills-based assessments or an apprenticeship period. 32 In most countries, legal education occurs at the undergraduate level, supplemented by a skills courses and an apprenticeship. For example, in Great Britain, after an undergraduate law degree (or a one-year intensive course in the foundations of legal knowledge), students must either complete a one-year legal practice course for solicitors or a bar vocational course for barristers, and then work under the supervision of a barrister for a one-year pupilage, or under a solicitor for a two-year training contract. Australian practitioners complete an extended undergraduate law degree and a two-year apprenticeship. Scotland requires a twenty-eight-month vocational course and a two-year traineeship. In Germany, students complete two years of theoretical study and an eighteen-month internship with a court, prosecutor, agency or private practitioner. Canadian provinces typically require graduation from a law school, 957 followed by a skills course and a ten-to twelve-month articling period in which the student works under supervision. 33 How would you evaluate those approaches in comparison to that of the United States?
1.What reforms, if any, would you make in the current system of admission?
2.In 2010, the ABA Council of the Section of Legal Education and Admission to the Bar began encouraging states to adopt the Uniform Bar Exam, which includes the Multistate Bar Exam, six multistate essay questions, and two multistate performance tasks. The Conference of Chief Justices of State Supreme Courts passed a similar resolution in 2010. Thirty-six states and territories have adopted the uniform exam, which allows aspiring lawyers to transfer scores among jurisdictions. However, states remain free to add exam questions, impose additional requirements, set their state’s passing score, and decide how long an applicant’s score remains valid. 34 Should all states move to a uniform exam? Should they also adopt a uniform cutoff score?
3.Is significant reform in existing exam procedures politically practical or socially desirable? If nonlawyers controlled the admission process, what changes might they propose? Should their interests play a greater role in establishing licensing structures?
Moral character as a professional credential has an extended history. For lawyers, the requirement dates to ancient Rome, and its Anglo-American roots reach to thirteenth-century England. In this country, every state bar currently makes certification of character a prerequisite for practice, and most other nations and licensed professions impose a similar mandate. In principle, the requirement’s rationale is straightforward: It serves both to protect the public from unethical practitioners, and to preserve confidence in the integrity of the system. In practice, however, the application of the standard has proven problematic. Historically, it has served to exclude a diverse and changing constituency, variously defined to include not only former felons, but religious, racial, and ethnic minorities, adulterers, political radicals, and 958 bankrupts. In perhaps the high-water mark of exclusivity, one Pennsylvania board rejected candidates deemed “dull,” “colorless,” “subnormal,” “unprepossessing,” “shifty,” “smooth,” “keen,” “shrewd,” “arrogant,” “conceited,” “surly,” and “slovenly.” Also rejected were those who lacked “well defined ideas on religion,” or had family members with “unsavory” backgrounds or a “poor business reputation.” 35 Although the number of applicants formally denied admission has always been small—in one study, fewer than 1 percent—the number deterred or delayed has been more substantial. 36
For more on the history of the character requirement, consider the excerpts below.
George Sharswood, An Essay on Professional Ethics
(4th ed. 1876).
There is no profession in which moral character is so soon fixed as in that of the law; there is none in which it is subjected to severer scrutiny by the public. It is well that it is so. The things we hold dearest on earth—our fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself—we confide to the integrity of our legal counselors and advocates. Their character must be not only without a stain, but without suspicion.
Schware v. Board of Bar Examiners of the State of New Mexico
Supreme Court of the United
States
353 U.S. 232 (1957)
.
[At issue was the denial of an applicant by the Board of Bar Examiners based on his prior membership in the Communist Party and related activities. These activities included participation in violent shipyard strikes, arrests for political activities, and use of aliases. However, the applicant quit the Communist Party in 1940 and served honorably in the Army before graduating from law school in 1953. In support of his application, he offered testimony of his rabbi, and the faculty, fellow students, and staff at the law school. No witnesses contradicted the testimony of current good character. The Supreme Court reversed the denial of admission, and Justice Frankfurter wrote a separate concurrence.]
n Mr. Justice Frankfurter , whom Mr. Justice Clark and Mr. Justice Harlan join, concurring.
959One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to “life, liberty and property” are in the professional keeping of lawyers. It is a fair characterization of the lawyer’s responsibility in our society that he stands “as a shield,” to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as “moral character.” . . .
It is beyond this Court’s function to act as overseer of a particular result of the procedure established by a particular State for admission to its bar. No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant for admission, a judgment of which it may be said as it was of “many honest and sensible judgments” in a different context that it expresses “an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions,—impressions which may lie beneath consciousness without losing their worth.” . . .
But judicial action, even in an individual case, may have been based on avowed considerations that are inadmissible in that they violate the requirements of due process. Refusal to allow a man to qualify himself for the profession on a wholly arbitrary standard or on a consideration that offends the dictates of reason offends the Due Process Clause. Such is the case here. . . .
To hold, as the [lower] court did, that Communist affiliation for six to seven years up to 1940, fifteen years prior to the court’s assessment of it, in and of itself made the petitioner “a person of questionable character” is so dogmatic an inference as to be wholly unwarranted. History overwhelmingly establishes that many youths like the petitioner were drawn by the mirage of communism during the depression era, only to have their eyes later opened to reality. Such experiences no doubt may disclose a woolly mind or naive notions regarding the problems of society. But facts of history that we would be arbitrary in rejecting bar the presumption, let alone an irrebuttable presumption, that response to foolish, baseless hopes regarding the betterment of society made those who had entertained them but who later undoubtedly came to their senses and their sense of responsibility “questionable characters.” Since the Supreme Court of New Mexico as a matter of law took a contrary view of such a situation in denying petitioner’s application, it denied him due process of law.
960For a contemporary look at the character and fitness requirement, consider the case of Stephen Glass, discussed in the decision below.
Supreme Court of California
316 P.3d 1199 (2014)
.
n The Court.
Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic’s fact checkers. The articles appeared between June 1996 and May 1998, and included falsehoods that reflected negatively on individuals, political groups, and ethnic minorities. During the same period, starting in September 1997, he was also an evening law student at Georgetown University’s law school. Glass made every effort to avoid detection once suspicions were aroused, lobbied strenuously to keep his job at The New Republic , and, in the aftermath of his exposure, did not fully cooperate with the publications to identify his fabrications.
Glass applied to become a member of the New York bar in 2002, but withdrew his application after he was informally notified in 2004 that his moral character application would be rejected. In the New York bar application materials, he exaggerated his cooperation with the journals that had published his work and failed to supply a complete list of the fabricated articles that had injured others.
Glass passed the California Bar examination in 2006 and filed an application for determination of moral character in 2007. It was not until the California State Bar moral character proceedings that Glass reviewed all of his articles, as well as the editorials The New Republic and other journals published to identify his fabrications, and ultimately identified fabrications that he previously had denied or failed to disclose. In the California proceedings, Glass was not forthright in acknowledging the defects in his New York bar application.
At the 2010 State Bar Court hearing resulting in the decision under review, Glass presented many character witnesses and introduced evidence regarding his lengthy course of psychotherapy, along with his own testimony and other evidence. Many of his efforts from the time of his exposure in 1998 until the 2010 hearing, however, seem to have been directed primarily at advancing his own well-being rather than returning something to the community. His evidence did not establish that he engaged in truly exemplary conduct over an extended period. We conclude that on this record he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law.
961. . . . Stephen Glass was born in September 1972, in a suburb of Chicago, Illinois. After early success as a journalist in college and a developing interest in the law, in 1994 Glass was admitted to New York University School of Law but deferred his intended legal training to accept a position in Washington, D.C., with Policy Review magazine.
In September 1995 Glass accepted a position at The New Republic magazine. In early June 1996 he began fabricating material for publication. The fabrications continued and became bolder and more comprehensive until he was exposed and fired in May 1998. . . .
Glass graduated from law school in 2000, when he also took and passed the New York bar examination. He applied to become a member of the New York bar in 2002. After an evidentiary hearing before a subcommittee of a committee on character and fitness, and pursuant to apparent custom, in September 2004, a representative of that committee informed Glass informally that his application would be rejected, so he withdrew it. The record does not disclose the reason for the tentative decision.
In his application to the New York bar, Glass described his misconduct and firing. His application and supporting materials included only 20 articles containing fabrications. Glass wrote that he had apologized to the editor of The New Republic, saying “I also worked with all three magazines [(referring to The New Republic , Harper’s , and George magazines)] and other publications where I had written freelance articles to identify which facts were true and which were false in all of my stories, so they could publish clarifications for their readers.”
At the hearing, Lane [the editor of The New Republic ] challenged the quoted statement as untrue. Lane believed that Glass had failed to come forward to actively assist The New Republic in identifying his fabrications, and instead had placed the entire burden of identifying his errors on Lane. Lane testified: “Well, he didn’t work with us. The effort we went through, over the course of nearly a month, to investigate all those stories would have been unnecessary if he had worked with us, and simply come forward and laid bare everything that was untrue in his stories. Instead, he sought legal counsel and, in effect, clammed up. . . .”
According to Glass, during his childhood and young adulthood his parents exerted extremely intense and cruel pressure upon him to succeed academically and socially. Glass felt that The New Republic offered an extremely competitive atmosphere and that his journalistic efforts there failed to make a mark sufficient to ensure his retention after his year term had elapsed. It was after a visit to the family home, when his parents berated him for his apparent failure even in what they considered the worthless career of journalism, that he began fabricating material for publication. He also fabricated reporter’s notes and supporting materials for his articles. His aim was to impress his parents and colleagues.
962Once he was fired from The New Republic , Glass was distraught, suicidal, and unable to focus, almost immediately entering therapy. He nonetheless hired counsel whom he directed to “work with The New Republic .” Glass testified that he believed that The New Republic wanted to conduct its own investigation because it did not trust him and testified that “I came to understand that they were going to provide me with a list of [fabricated] articles, and that I was to affirm whether or not the article was fabricated that they showed me or that they listed.” He had fabricated more than The New Republic had discovered in its investigation, although he testified that due to his distress he did not realize this when he reviewed the list or later when he glanced at The New Republic’s editorials listing his fabrications. Four of his articles containing fabrications were not on the list. . . .
Glass did well in law school. . . . Members of Georgetown University’s law school faculty testified on his behalf at the hearing. Professor Susan Bloch telephoned him when the scandal first broke and asked if he needed someone to talk to. She appointed him as her research assistant, praising him as one of the brightest and best workers she ever had encountered. She found him to be honest and developed complete trust in him. She recommended him for a judicial internship during law school and a clerkship after graduation. Bloch maintained friendly contact with Glass over the years, including after he moved to California, and testified on his behalf when Glass applied for admission to the New York bar. She testified that she believed Glass had learned from his wrongdoing, that the trauma of his exposure would keep him from ever repeating such behavior, and that she had never observed any dishonesty on his part. She did not read his fabricated articles but was generally aware of their content. . . .
Glass testified that he moved to California in the fall of 2004. He was hired by the Carpenter, Zuckerman and Rowley law firm as a law clerk. The firm has many homeless clients, and in addition to the legal work he does on their cases, he has helped them with their personal problems. . . . [He also] arranged to work extra hours for deserving clients on matters for which his firm had no expectation of collecting fees.
California attorney Paul Zuckerman testified that he decided to give Glass a chance as a law clerk. After initially assigning Glass minor projects and exercising close oversight, Zuckerman became convinced that Glass was one of the best employees in the firm, with a fine intellect, a good work ethic, and reliable commitment to honesty. Glass exhibited great compassion, assisting at a personal level with difficult clients and helping to find resources and social services for some of the firm’s many homeless clients. Other lawyers who had worked for or with the firm confirmed Zuckerman’s view of Glass as an employee who conducted excellent legal research, was assiduous and hyper-scrupulous about honesty, and stopped to think about ethical issues.
963Also offered in support of Glass’s application were affidavits that had been submitted in support of his New York bar application from the judges for whom Glass had worked during and immediately after completing law school. Both found him highly competent and honest at that time. Additional declarations from attorneys and friends that had been submitted with the New York bar application were offered in support.
Dr. Richard Friedman, a psychiatrist, testified that he had treated Glass since 2005, and believed he had developed good judgment, scrupulous honesty, and the ability to handle difficult situations well. Dr. Friedman reported that he would be astonished if Glass committed misconduct as he had in the past, both because of the growth of character and moral sense the doctor had observed, but also because of a strong instinct to protect himself from the traumatic results of his prior misconduct. He reported that Glass had no sociopathic personality traits.
Dr. Richard Rosenthal, a psychiatrist and psychoanalyst who is known for treating gamblers and those with impulse control disorders, was approached by Glass’s attorney in 2005. Rosenthal had an evaluative as well as therapeutic relationship with Glass that began in 2005 and continued with meetings once or twice a month until the time of the hearing.
Dr. Rosenthal identified Glass’s underlying psychological issues as a need for approval, a need to impress others, and a need for attention, and pointed also to Glass’s fear of inadequacy, rejection, and abandonment. Rosenthal testified that when they met in 2005, Glass needed to overcome enormous shame and learn to forgive himself. Through therapy, Glass learned to be realistic about family issues and to set boundaries. Rosenthal believed that Glass had grown up in a family that exerted tremendous pressure on him to succeed yet always made him feel like a failure. In Rosenthal’s opinion, Glass was rehabilitated, meaning that he was extremely conscientious and honest, avoided the appearance of impropriety, had reasonable goals and expectations, had gained empathy and tolerance, and would not allow himself to be overwhelmed by stress. The doctor saw no evidence that Glass was a sociopath.
Glass himself described his therapy, which had commenced very shortly after his exposure and continued to the time of the 2010 hearing, that is, for 12 years. Through therapy he had learned to separate his feelings about his family from the work environment and to “set boundaries within my family.” He testified that he believed the most important thing he could do to make amends was to change himself.
Martin Peretz, who owned and managed The New Republic at the time of the fabrications, testified on Glass’s behalf and had developed a charitable view of his misconduct by the time of the California State Bar hearing. He blamed himself and, even more, the magazine’s editors for encouraging Glass to write zany, shocking articles and for failing to recognize the improbability of some of Glass’s stories. He found the harm 964 of the scandal to the magazine to be minimal. He had renewed social contact with Glass in the past few years and believed that Glass had been harshly treated. He would not rule out hiring Glass again as a journalist. He explained that in his experience as a professor “[t]he most brilliant students plagiarize,” complaining to the Committee’s counsel, “I actually find your pursuing him an act of stalking.” . . .
Glass took and passed the California Bar examination in 2006 and in July 2007 filed an application for determination of moral character as part of his bar application. The Committee of Bar Examiners denied the application, but on Glass’s request a moral character hearing was conducted in the State Bar Court in April and May of 2010.
The State Bar Court’s hearing judge found that Glass had established good moral character. The Committee sought review. The State Bar Court Review Department (Review Department) independently reviewed the record and a majority of the three-judge panel agreed with the hearing judge that Glass had established good moral character.
The Review Department majority acknowledged that Glass’s misconduct had been “appalling” and “egregious,” but believed that Glass had satisfied his “heavy burden of proof” and established his rehabilitation. . . .
[We disagree.] Glass not only spent two years producing damaging articles containing or entirely made up of fabrications, thereby deluding the public, maligning individuals, and disparaging ethnic minorities, he also routinely expended considerable efforts to fabricate background materials to dupe the fact checkers assigned to vet his work. When exposure threatened, he redoubled his efforts to hide his misconduct, going so far as to create a phony Web site and business cards and to recruit his brother to pose as a source. . . .
The record also discloses instances of dishonesty and disingenuousness occurring after Glass’s exposure, up to and including the State Bar evidentiary hearing in 2010. In the New York bar proceedings that ended in 2004, as even the State Bar Court majority acknowledged, he made misrepresentations concerning his cooperation with The New Republic and other publications and efforts to aid them identify all of his fabrications. He also submitted an incomplete list of articles that injured others. . . .
The record of Glass’s therapy does not represent “truly exemplary conduct in the sense of returning something to the community.” . . . To be sure, through therapy he seems to have gained a deep understanding of the psychological sources of his misconduct, as well as tools to help him avoid succumbing to the same pressures again. His treating psychiatrists are plainly highly competent and well regarded in their field, and they are convinced that he has no remaining psychological flaws tending to cause him to act dishonestly. Glass believed that he could best make 965 amends by changing himself. But his 12 years of therapy primarily conferred a personal benefit on Glass himself.
Glass points to the pro bono legal work he does for clients of his firm as evidence of sustained efforts on behalf of the community, but we observe that pro bono work is not truly exemplary for attorneys, but rather is expected of them.
Glass and the witnesses who supported his application stress his talent in the law and his commitment to the profession, and they argue that he has already paid a high enough price for his misdeeds to warrant admission to the bar. They emphasize his personal redemption, but we must recall that what is at stake is not compassion for Glass, who wishes to advance from being a supervised law clerk to enjoying a license to engage in the practice of law on an independent basis. Given our duty to protect the public and maintain the integrity and high standards of the profession . . . our focus is on the applicant’s moral fitness to practice law. On this record, the applicant failed to carry his heavy burden of establishing his rehabilitation and current fitness.
For the foregoing reasons, we reject the State Bar Court majority’s recommendation and decline to admit Glass to the practice of law.
1.In arguing for Glass, his lawyer told the California Supreme Court: “Second chances are an American story. This case is such a story, one of redemption.” 37 By contrast, in commenting on the Glass ruling, the president of the California bar stated that the ruling “vindicates the idea that honesty is of paramount importance in the practice of law in California.” 38 How would you characterize the ruling?
2.T he Code of Recommended Standards for Bar Examiners, adopted by the ABA, the National Conference of Bar Examiners, and the Association of American Law Schools, lists the following factors as relevant to determining an applicant’s admission to the bar:
The Code further specifies that the “weight and significance” of prior conduct should be evaluated by considering factors such as the recency and seriousness of the conduct, evidence of rehabilitation and positive social contributions since the conduct, and candor during the admission process. 40 Does this list seem appropriate to you? Or does it seem over- or under-inclusive?
3.Some charge that the expansiveness of this list and the subjectivity of its standards raise several concerns. One is the possibility for overly intrusive inquiries and inconsistent decisions. Historically, character committees have excluded individuals for a wide range of conduct that had little obvious relation to protection of the public, including everything from civil disobedience to cohabitation. Bar examiners and judges have often disagreed about the relative weight to be accorded to factors such as the severity or recency of the conduct, and the evidence of rehabilitation and remorse. So, for example, violation of a fishing license statute ten years earlier was sufficient to cause one local Michigan committee to decline certification. But, in the same state at about the same time, other examiners sitting on the central board admitted individuals convicted of child molestation and conspiring to bomb a public building. While Michigan’s repentant bomber gained admission despite years in a maximum security facility, an unconfessed Peeping Tom in Georgia was viewed as too great a threat to warrant admission. 41 Some evidence also suggests that race and class bias may affect the evaluation process. 42 How substantial are these concerns?
4.Some also complain about the timing of character inquiries—arguing that the current screening process comes both too early and too late. These critics point out that character inquiries occur before most applicants have faced situational pressures comparable to those in practice, but after candidates have made such a significant investment in legal training that denying admission imposes enormous costs. Do you agree? When should character inquiries come?
9675.Others complain about the double standard operating in admission and disciplinary proceedings, as courts and bar authorities are far more willing to deny than to revoke a license based on evidence of misconduct. Recall, as Chapter 3, Section E indicates, disbarment is exceedingly rare and occurs in only the most egregious cases; disciplinary authorities generally do not even inquire into the kind of minor financial and misdemeanor conduct that can result in delay or denials for applicants. Is this double standard justified? Some argue that, from the standpoint of protecting the public, misconduct is most probative of threats to clients when it is committed by individuals who are already officers of the court. If matters such as financial irresponsibility, mental health disabilities, or disregard of legal obligations like child support awards can justify exclusion from practice, why do they trigger inquiry only by admission and not disciplinary bodies?
6.A difficulty with character screening involves problems of predicting future misconduct from prior acts that occur under quite different circumstances. Psychological research makes clear that moral behavior is highly situational, and that contextual norms, incentives, and pressures have a substantial impact on ethical conduct. 43 Past conduct is, of course, relevant in assessing how people will react to such contextual influences. Yet it is often necessary to know a good deal about why individuals responded to earlier situations in order to predict how they will react in different future circumstances. 44 Bar examiners frequently lack that level of knowledge.
A recent review of 1343 Connecticut bar applicants and their subsequent disciplinary records found that, although some factors do increase the likelihood of discipline, even these factors are poor predictors. As the authors explain, “even if some variable (e.g., having defaulted on a student loan) doubles the likelihood of subsequent disciplinary action—a very strong effect—the probability of subsequent discipline for an applicant with a student loan default is still only 5 percent.” 45 Variables associated with a higher risk of discipline include being male, having delinquent credit accounts, having a criminal conviction, having been a party to civil litigation (excluding divorce), having multiple traffic violations, and having a history of psychological disorders. Taking all the risk factors together, “only two individuals were predicted to have a better than even chance of being disciplined, a finding that casts serious doubt on the usefulness of the character and fitness inquiry as a predictor of lawyer misconduct.” 46 What follows from those findings?
7.Would you support a system of conditional admission for candidates with a history of difficulties such as substance abuse, mental health disabilities, or unpaid financial obligations? About half of states have such 968 systems, which place certain applicants on probation for a specified period, typically around two to five years. During that time, they must comply with terms set by bar examiners, such as participation in alcohol treatment programs, or timely payment of debts.
In February 2008, the ABA approved a Model Rule on Conditional Admission for applicants who demonstrate “recent rehabilitation from dependency or successful treatment for mental or other illness, or from any other condition that the court deems appropriate that has resulted in conduct or behavior that would otherwise have rendered the applicant currently unfit to practice law.” 47 The commentary to the rule makes clear that it is designed to avoid discouraging applicants from seeking treatment. Whether the conditional status should remain confidential is left to states to determine.
In 2019, the Stanford Center on the Legal Profession and the Criminal Justice Center released a report entitled Unlocking the Bar: Expanding Access to the Legal Profession for people with Criminal Records in California . The report pointed out that some 70 million Americans, about a fifth of the population, have criminal records that could trigger moral character inquiries or denials by state bars. A disproportionate number of those individuals are people of color. 48 States differ in how they treat applicants with serious criminal records. Some permanently exclude felons. Many, like California, have a rebuttable presumption against admitting applicants convicted of certain crimes. (California, for instance, specifies violent felonies, felonies involving moral turpitude, and crimes involving a breach of fiduciary duty. 49 )
Beyond that, the report identified a range of problems with the California bar admission bar process. One problem, for example is:
[T]he California State Bar asks law schools—but not law students —to provide any records related to students’ arrests, even if the arrest did not lead to a conviction. And the California State Bar asks law students—but not law schools —to provide any information related to the students’ expunged convictions. Multiple law school stakeholders raised concerns about these discrepancies. Specifically, these discrepancies foster confusion and may heighten the risk that law students will appear to be withholding information (and lacking candor) when in fact they 969 were simply asked to disclose different information to the California State Bar than their law schools were asked to disclose about them. 50
More broadly, the report found that the process of admission lacks transparency. The bar releases no information about denials, so applicants have little basis for evaluating their chances of admission. The result is to deter many candidates with criminal records from applying to law school. The Centers’ survey of potential applicants with such records revealed the following:
Our research found that many individuals with criminal records are deterred from applying to law school in the first place. Of our 88 survey respondents — all with criminal records—47 indicated they were “considering applying to law school. ” When asked the question “ Why have you not yet applied for law school” over half cited concern about passing the moral character component as one of the top three reasons. One individual wrote, in the space provided for comments: “I thought because I had a felony there was no chance[,] so I never tried.” 51
Exclusion of such potential applicants disproportionately affects students of color and deprives the profession of individuals whose experience with the criminal justice system could prove invaluable in practice representing defendants and working on policy issues. 52
If you were the chair of a task force on evaluating the California bar admission process, how would you respond? What recommendations might you make to bar examiners and law schools?
1. If bar examiners are reasonably satisfied that an applicant’s prior conduct will not recur, should that end the inquiry? Or does the profession have a substantial interest in protecting its public reputation and preserving respect for officers of the law that justifies excluding individuals guilty of heinous acts, regardless of their rehabilitation? If so, what acts should qualify? 53 Consider the opening of one 2006 article, in the New York Daily News .
Ex-Cons Ply Other Side of Law by Practicing It. No Longer In Prison, New Attorneys Yearn for a Second Chance
A convicted killer, a prostitute, drug dealers and common thieves. Sound like a cell block on Rikers Island? Try a meeting of the New York State bar. Dozens of felons are working as lawyers throughout 970 New York, gaining redemption in a field that once judged them unfit for society. 54
Compare the title of a 2017 article in Current Affairs : Nothing Will Ever Be Enough: Dwayne Betts Did Everything Right, and Then Some . So Why Can’t He Practice Law ? 55 The article described the Connecticut bar’s rejection of Dwayne Betts based on a twenty-year-old conviction for carjacking, attempted robbery, and a firearms violation when he was sixteen years old. In the intervening years, Betts managed to earn a college degree, complete a masters of fine arts, hold a Radcliffe Fellowship at Harvard, publish two books of poetry, graduate from Yale Law School, and pass the Connecticut bar exam. Only after a Yale law professor offered to help represent him and assembled more than 200 letters of support did the bar reverse its decision. 56
Betts is not an isolated case. In 2014, the Washington Supreme Court allowed Shon Hopwood, a man convicted of five bank robberies in 1997 and 1998, to be admitted to practice. While in prison, Hopwood drafted a pro se petition for a fellow inmate that led to a 9 – 0 victory in the Supreme Court. Hopwood’s exemplary record since prison led to his clerkship on the D.C. Circuit Court of Appeals and caused the judge who sentenced him to twelve years in prison to state “Hopwood proves that my sentencing instincts suck.” 57 Hopwood is now a professor at Georgetown law school who devotes significant pro bono time to aiding others with criminal records gain bar admission.
As a member of your state’s Board of Bar Examiners, would you impose any limits on bar character inquiries? Do all criminal convictions demonstrate the kind of disrespect for law that ought not to characterize officers of the court? Should more states adopt bright line rules and make certain felony convictions a basis for disqualification, either permanently or for a prescribed period? Or should bar examiners refuse to consider criminal convictions that are more than 10 years old because after that period, if the applicant has been crime free, his or her likelihood of future offenses is extremely low?58
2.Should more emphasis focus on disciplinary responses to misconduct rather than efforts to predict it? 59 Judge Judy Johnson, the former Executive Director of the California State Bar, has agreed that that standards for disciplining current members of the State Bar should be stricter than the standards for admitting new ones, not the reverse. 60 From the standpoint of 971 public protection, is there any justification for treating applicants more harshly than practicing attorneys?
3.How should courts and bar examiners treat constitutionally protected speech that raises issues of character? Some law students report that they have been deterred from engaging in political protests that might involve civil disobedience out of concern that it might delay or jeopardize their admission to the bar. 61 Should states be required to publish specific standards or bar examiner decisions denying admission so that applicants would have greater notice of disqualifying conduct? 62 Should political opinions, or non-vexatious “litigiousness” ever be the basis for denying admission to the bar? 63
4.What kinds of character information should law schools ask of applicants and provide to bar authorities? The National Conference of Bar Examiners has a form letter used by about half of the states that seeks law school deans’ certification of the character and fitness of their graduates. That letter asks three questions:
(1)Does the applicant’s record raise question regarding the applicant’s character or indicate a lack of integrity or trustworthiness?
(2)Has the applicant engaged in any behavior, whether or not it was made part of the applicant’s record, that reflects unfavorably on his or her character or fitness to practice law?
(3)Is there any additional information of which you are aware that might impact the Board’s determination of this person’s character and fitness?
Other jurisdictions ask variations on these questions, sometimes broadly framed to cover any matters reflecting adversely on the applicant’s reputation or character.
5.How much significance should the bar place on applicants’ personal financial irresponsibility in general and student loan repayments in particular? Judges and bar examiners have long differed over the importance of these issues and disagreed whether the discharge of educational debts in bankruptcy should be a grounds for exclusion. 64 Consider, for example, In re C.R.W. , 481 S.E.2d 511 (Ga. 1997) , in which the Georgia Supreme Court denied admission to an applicant who, in the majority’s view, had not made a “good faith effort” to establish a repayment schedule concerning credit obligations, including some of her student loans discharged in bankruptcy. By contrast, the two dissenting justices felt that “incurring debt for a 972 legitimate purpose, using legitimate means to relieve oneself of the burden of that debt, and keeping current on repayment plans . . . [for claims that] survived the bankruptcy proceeding” did not constitute fiscal irresponsibility. 65 What is your view?
a)Criminal Conduct and Rehabilitation
You are a member of your state supreme court. How would you vote in the following cases? What standard should the applicant meet in demonstrating rehabilitation, and what importance would you attach to evidence of remorse?
Matter of Simmons, 414 P.3d 1111 (Wash. 2018) .
Tarra Simmons served 20 years for serious drug and weapons offenses. She then completed pre- and post-release treatment programs, graduated with honors from Seattle University School of Law, and won prestigious awards and a Skadden Public Interest Fellowship to work on reforming the reentry process for former felons. The Washington Board of Bar Examiners denied her application to sit for the bar exam on the ground that her most recent misconduct was only six years ago, her rehabilitation was still “fragile” and “untested,” her fame had given her a disturbing “sense of entitlement,” and she had “not yet established an overall consistent and permanent pattern of positive conduct sufficient to outweigh her years of misconduct.” How should the Supreme Court rule?
Application of King, 136 P.3d 878 (Ariz. 2006) .
In 1977, Lee King was employed as a deputy constable in Texas. While depressed and drunk, he shot two unarmed men after a fight in a bar. He pled guilty to attempted murder, and served four months before a court suspended his sentence. He then graduated from college and law school, and was admitted to the Texas bar. He married, completed alcohol counseling, practiced in Texas, and after ten years moved to Arizona to work in his firm’s Phoenix office. Although the Arizona character committee recommended his admission, the Supreme Court disagreed. In the majority’s view, King had not made the “ ‘virtually impossible’ showing needed to erase the stain of his serious misconduct.” What most disturbed the court was King’s suggestion that he might have had a defense to the charges of attempted murder, but that he had accepted the plea because of “anti-police” public attitudes, which might have compromised his ability to get a fair trial. Because King did not adequately show why he committed the attempted murders or how he had overcome his weakness, he had not met his high burden of proof.
One justice dissented on the ground that King had been a “model citizen” for thirty years, and had never been subject to any disciplinary 973 action. He also noted that King had attributed his assault to job-related stress and alcohol abuse, and had undergone counseling during and after his probation. He had never been diagnosed as having a mental health disability warranting further treatment, and in the dissent’s view, he should not have been penalized for failing to obtain a mental health expert to diagnose his earlier character flaw trait and his “triumph over it.” The dissenting judge also questioned whether applicants would be better served by a bright line rule barring admission of those with serious offenses, because “if Mr. King’s application cannot meet our ‘non per se’ standards, I doubt that any ever will.” Is he right?
Application of T.J.S ., 692 A.2d 498 (N.H. 1997) .
In 1986, T.J.S. was convicted of six counts of felonious assault of two female students while he was employed as a junior high and high school teacher. He also admitted inappropriate sexual conduct with nine other students between the ages of 13 and 17, including kissing and sexual intercourse. While serving four years in prison, he completed sexual offender counseling and was, “by all accounts, a model prisoner.” He subsequently married, graduated from law school, and found employment working as a nonlawyer in a law firm. In recommending against admission, the state character committee described his demeanor as “too articulate, glib, and adept at explaining away his past behavior.” The court accepted that recommendation, noting that attorneys enjoy great trust and confidence from clients and the applicant “failed to convince us that, given the opportunity, he would not breach such trust and confidence.” Do you agree? Should it matter that there is no evidence that outward displays of repentance accurately reflect “character” or predict a lower likelihood of recidivism? 66
In the Matter of Hamm , 123 P.3d 652 (Ariz. 2005) (en banc).
James Hamm, who mortally shot a man during a drug deal in 1974, spent the next 18 years in prison as a model inmate. While serving his sentence, he obtained a college degree summa cum laude and married a woman with whom he formed a prison reform organization. After his sentence was commuted, he performed thousands of hours of community service and graduated from the University of Arizona law school. Some state legislators were outraged by his admission. By threatening budget cuts, they forced the law school to review its policy concerning convicted felons. According to the president of the state senate, “Hamm’s precious seat should go to one of the thousands of applicants who didn’t shoot somebody in the head.” Defenders of Hamm’s admission argued that he should have the right, once he had served his sentence, to put the crime behind him. Hamm himself maintained that “I don’t want to put it behind 974 me. I want to bring it with me.” 67 In his law school application, he argued that the time he spent behind bars tutoring other prisoners and working as an inmate legal assistant would enrich his career.
After passing the bar exam and working for several years as Director of Advocacy Services at the prison reform organization, he sought admission to practice. In denying his application, the Arizona Supreme Court cited several factors. One was his failure to make any child support payments to the son he had fathered in 1969 until after he applied to the bar in 2004. Although Hamm attempted to excuse his failure by claiming that he had learned in 1988 that his son had been adopted by his former wife’s husband, that did not, in the court’s view, explain his lack of concern prior to 1988. Nor was Hamm’s account consistent with his son’s testimony that he had never told his father that he had been adopted. The Committee was also disturbed by Hamm’s failure to disclose an altercation with his wife that had caused a call to the police (but no arrest) in 1996, and his use of language in his petition for review from a prior supreme court decision without quotes or attribution. Are these sufficient basis to deny admission?
b)Academic Misconduct
Four different students at four different law schools were found to have plagiarized papers off the internet during their final year. One school simply gave the student an F in the course; a second suspended the student for a year; a third agreed not to report the conduct to the bar if the student performed 100 hours of community service; and the fourth learned of the plagiarism only after the student graduated, when a journal to which the paper was submitted discovered the earlier publication. What are the obligations of the law schools and the applicants to report these incidents? Should bar examiners’ response be affected by the severity of the school’s response? Is one act of plagiarism sufficient grounds for exclusion? If, as some studies suggest, law schools experience a high incidence of unreported academic misconduct, what follows from that fact? How should bar examiners respond to conduct such as providing false information on a law school application or falsifying a resume and transcript? Should applicants be given clear guidance about how such acts will be treated? 68
c)First Amendment Concerns
How should courts and character committees deal with conduct raising issues of freedom of speech?
975In re Converse , 602 N.W.2d 500 (Neb. 1999) .
The Bar Commission of Nebraska denied Paul Converse the right to sit for the state bar exam based on his history of repeated conflicts with administrators at the University of South Dakota Law School. The conflicts included a series of complaints about grades, internship procedures, parking violations, removal of a photograph of a female nude posted in his law school carrel, and marketing of a “Deanie on a Weanie” shirt depicting a nude caricature of the dean astride a large hot dog with a caption reading “astride the Peter Principle.” Converse drew attention to many of these conflicts by circulating letters rather than relying on prescribed complaint channels. He sent correspondence to the judges of the South Dakota Supreme Court in the grade dispute, to the ACLU in the library carrel incident, and to the school newspaper in other matters. He also threatened litigation and contacted the university president to demand that the dean be fired for incompetence. Prior to law school, Converse sued a tenant for nonpayment of rent and referred to her as a “fucking welfare bitch.”
In affirming the Commission’s decision, the Nebraska Supreme Court determined that behavior reflecting on character could be considered “even if it was protected by the First Amendment.” Converse’s record displayed “hostile, intemperate, threatening and turbulent conduct” incompatible with a profession committed to peaceful resolution of disputes through appropriate channels.
d)Financial Responsibility
In re Application of Griffin , 943 N.E.2d 1008 (Ohio 2011) .
The Ohio Supreme Court upheld the decision of the Ohio Board of Commissioners on Character that rejected a bar applicant, Hassan Jonathan Griffin, citing the applicant’s student-loan and credit-card debt, part-time employment, and lack of a feasible plan to satisfy his financial obligations. In 2008, the applicant graduated from The Ohio State University Moritz College of Law (at the age of thirty-eight) owing “approximately $170,000 in student loans—$20,000 for his undergraduate studies and $150,000 for law school. He also had incurred approximately $16,500 in credit-card debt.” In upholding his rejection, the court accepted “the board’s findings of fact and conclude that the applicant has neglected his personal financial obligations by electing to maintain his part-time employment with the Public Defender’s Office in the hope that it will lead to a full-time position upon passage of the bar exam, rather than seeking full-time employment, which he acknowledges would give him a better opportunity to pay his obligations and possibly qualify him for an additional deferment of his student-loan obligation.”
Is it fair to deny an applicant bar admission for accepting part-time employment in an effort to secure a full-time job? What should Griffin have done if his goal was to work for the Public Defender? Under what, 976 if any circumstances, should failure to repay student loans be a basis for denial of admission? 69
3.Bar Membership: Citizenship Requirements
Most states do not require bar applicants to disclose their immigration or citizenship status. 70 However, some states do, and the eligibility of undocumented immigrants has been a matter of dispute. The United States Justice Department has opposed admission to undocumented immigrants, relying on a federal statute that prohibits state agencies from granting public benefits, including professional licenses, to undocumented individuals, though an exception to the general prohibition exists where a state statute permits such licensure. 71
Taking a different tack, in 2014, the California Supreme Court ruled that an undocumented immigrant, Sergio Garcia, could be admitted to the California bar. 72 Garcia was brought to the country from Mexico by his farm-worker family when he was seventeen months old, and, by the time his application reached the California Supreme Court, he had passed the bar exam and the moral character inquiry. 73 In its unanimous ruling admitting Garcia, the California Supreme Court was swayed by Garcia’s personal story, as well as a statute, passed by the California legislature immediately after oral arguments in the Garcia case, which explicitly authorized the action. That statute provides:
Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state . . . . 74
Until he finally got a green card in 2015, Garcia could not work for a law firm, business or public agency. Accordingly, he took cases as a solo practitioner handling accident disputes and immigration matters for low- and moderate-income individuals. Half of his cases are pro bono, and the rest hire Garcia on a contingent fee basis. When clients could not afford to pay the bill, they sometimes gave him fruit, vegetables, and jewelry. 75
977Florida, by contrast, which has no such statute, has denied admission to undocumented immigrants. 76 Opposing the ban, three former ABA Presidents filed an amicus brief claiming that imposing a blanket prohibition on undocumented immigrants would be a “waste of exceptional talent for our profession.” 77 Other commentators, however, share the view of the Federation for American Immigration Reform: “People in the country illegally should not be practicing law.” 78
4.Bar Membership: Matters of Mental Health
Title II of the Americans with Disabilities Act provides that: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in . . . or be subjected to discrimination by any . . . [public] entity.” 79 Under Title II, disabled individuals are deemed “qualified” for purposes of occupational licensing if they can meet the “essential eligibility requirements for receiving the license or certification.” 80 The Act provides an exception for exclusions “necessary” to providing the licensed services.
Notwithstanding that provision, the Code of Recommended Standards for Bar Examiners lists “mental or emotional instability” as a factor that’s relevant to determining an applicant’s fitness to practice. 81 Further, as noted earlier, The ABA’s Model Rule on Conditional Admission to Practice Law, Section 1 provides:
An applicant who currently satisfies all essential eligibility requirements for admission to practice law, including fitness requirements, and who possesses the requisite good moral character required for admission, may be conditionally admitted to the practice of law if the applicant demonstrates recent successful rehabilitation from chemical dependency or successful treatment for mental or other illness, or from any other condition this Court deems appropriate, that has caused conduct that would otherwise have rendered the applicant currently unfit to practice law. The [Admissions Authority] shall recommend appropriate conditions that the applicant to the bar must comply with during the period of conditional admission. 82
Some have challenged bar admission inquiries into applicants’ potential “mental or emotional instability.” Results have been mixed. In 978 a minority of cases, courts have demanded empirical evidence that the inquiry is necessary and can effectively identify applicants who pose a heightened risk to the public. A majority of courts, meanwhile, have applied a less rigorous test and reasoned that questions concerning serious mental illnesses are necessary to ensure that applicants “are capable of practicing law in a competent and ethical manner.” 83
In 2014, the U.S. Department of Justice advised two states that asking questions about applicants’ mental health and then requiring follow-up violated the ADA. 84 In response, the National Conference of Bar Examiners replaced the standard question that many states had traditionally used about bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder, with a new question that asks whether the applicant has, within the past five years, exhibited any conduct or behavior that could call into question the applicant’s ability to practice law in a “competent, ethical and professional manner.” 85 A n American Bar Association resolution also urged bar licensing authorities to drop overbroad questions and focus on conduct rather than status. 86 A 2017 survey found that many states had not done so. 87
1.How effectively does the ABA’s Model Rule on Conditional Admission to Practice Law deal with the problematic issues raised by bar inquiries into mental health? One study finds that conditional admission is often used for applicants with mental health or substance abuse histories who are not currently impaired and who would have been licensed under the pre-2008 standard. The result, the study’s authors argue, is to construct a new obstacle for those fit to practice. 88
Is such a result a tolerable byproduct of a program that accommodates competing interests in protecting the public from potentially impaired lawyers while enabling those capable of practice to demonstrate their fitness? Or do you agree with the author of a New York Times op-ed that “[l]egally, ethically and practically speaking, those of us living with mental illness should be judged by our deeds, not our diagnosis.” 89
9792.Recent research suggests that the prospect of bar inquiries and obstacles to admission deters many law students from seeking mental health treatment. 90 In one survey of fifteen law schools, over 40 percent of students thought that they had needed help for mental health problems in the prior year, but only about half actually received counseling from a mental health professional. 91 Almost half of all survey participants believed that if they had a drug or alcohol problem, their chances of bar admission were better if the problem remained hidden, and 43 percent thought the same about mental health difficulties. 92
Students’ confidentiality concerns are not without basis. A comprehensive empirical study found substantial costs for many applicants who disclosed mental health treatment: invasion of privacy; financial and emotional consequences related to delay in their admission; fees for lawyers and expert witnesses; and reputational concerns in small communities where applicants might come in contact with lawyers on their character committee later in practice. 93 Can anything be done to prevent the chilling effects of bar inquiries other than removing questions regarding treatment? A National Task Force on Lawyer Well-Being recommended that bars publish data reflecting low rates of denials due to conduct involving mental health and substance abuse disorders. 94 If such measures do not sufficiently reduce the chilling effect of bar inquiries concerning treatment, are such inquiries still worth the risk?
A report by the ABA Commission on Mental and Physical Disability Law suggests not. It concludes:
[R]esearch in the field, clinical experience and common sense all demonstrate that neither diagnosis nor the fact of having undergone treatment support any inferences about a person’s ability to carry out professional responsibilities or to act with integrity, competence or honor. Nor does the evidence in the field indicate that bar examiners or mental health professionals can predict inappropriate or irresponsible behavior on the basis of the person’s mental health history. 95
980Other extensive reviews of the relevant research have come to a similar conclusion. 96 In light of this research, in 2019 the Conference of Chief Justices urged states to remove mental health inquiries from their applications, and a petition requesting them to do so has circulated on Change.org. 97 Would you support that effort? If you think bars should be able to screen for admission based on mental disability, what questions would you permit?
The increasing mobility of the population and the interstate character of many transactions present substantial problems in a decentralized system of admission. These problems arise in a variety of contexts: attorneys relocating for family or professional reasons; attorneys representing local clients who need out-of-state services; attorneys with special expertise that offers them a national or global practice; and attorneys representing clients who have difficulty finding appropriate local counsel.
One way of responding to these difficulties has been to allow pro hac vice appearances by out-of-state lawyers. In Leis v. Flynt , 439 U.S. 438 (1979) , the Supreme Court addressed the constitutional underpinnings of that practice. In that case, defendants Larry Flynt and Hustler Magazine were criminally prosecuted for unlawful dissemination of obscene material. Flynt and Hustler wanted to be represented by their lawyers, Fahringer and Cambria. But the Ohio state court, where the criminal case was pending, summarily denied defendants’ motion to permit out-of-state lawyers Fahringer and Cambria to appear pro hac vice in association with local counsel.
Flynt and Hustler sought relief from that state-court ruling in federal court. The U.S. District Court ruled that the lawyers’ interest in representing Flynt and Hustler was a constitutionally protected property right—and that the state court had infringed that right without according the lawyers adequate procedural due process. The court therefore enjoined further prosecution of Flynt and Hustler until Fahringer and Cambria received a full hearing on their pro hac vice motion. The Sixth Circuit affirmed, holding that the lawyers could not be denied the privilege of appearing pro hac vice “without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion.” 574 F.2d 874, 879 (1978) . On petition for a writ of certiorari , the Supreme Court reversed.
981
Supreme Court of the
United States
439 U.S. 438 (1979)
.
n Per Curiam.
. . . . As this Court has observed on numerous occasions, the Constitution does not create property interests. Rather it extends various procedural safeguards to certain interests “that stem from an independent source such as state law.”
The Court of Appeals evidently believed that an out-of-state lawyer’s interest in appearing pro hac vice in an Ohio court stems from some such independent source. It cited no state law authority for this proposition, however, and indeed noted that “Ohio has no specific standards regarding pro hac vice admissions. . . .” Rather, the court referred to the prevalence of pro hac vice practice in American courts and instances in our history where counsel appearing pro hac vice have rendered distinguished service. We do not question that the practice of courts in most States is to allow an out-of-state lawyer the privilege of appearing upon motion, especially when he is associated with a member of the local bar. In view of the high mobility of the bar, and also the trend toward specialization, perhaps this is a practice to be encouraged. But it is not a right granted either by statute or the Constitution. . . .
Nor is there a basis for the argument that the interest in appearing pro hac vice has its source in federal law. The speculative claim that Fahringer’s and Cambria’s reputations might suffer as the result of the denial of their asserted right cannot by itself make out an injury to a constitutionally protected interest. There simply was no deprivation here of some right previously held under state law. Further, there is no right of federal origin that permits such lawyers to appear in state courts without meeting that State’s bar admission requirements. This Court, on several occasions, has sustained state bar rules that excluded out-of-state counsel from practice altogether or on a case-by-case basis. Accordingly, because Fahringer and Cambria did not possess a cognizable property interest within the terms of the Fourteenth Amendment, the Constitution does not obligate the Ohio courts to accord them procedural due process in passing on their application for permission to appear pro hac vice before the Court of Common Pleas of Hamilton County. 5
982n Mr. Justice Stevens , with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.
A lawyer’s interest in pursuing his calling is protected by the Due Process Clause of the Fourteenth Amendment. The question presented by this case is whether a lawyer abandons that protection when he crosses the border of the State which issued his license to practice.
The Court holds that a lawyer has no constitutionally protected interest in his out-of-state practice. In its view, the interest of the lawyer is so trivial that a judge has no obligation to give any consideration whatsoever to the merits of a pro hac vice request, or to give the lawyer any opportunity to advance reasons in support of his application. The Court’s square holding is that the Due Process Clause of the Fourteenth Amendment simply does not apply to this kind of ruling by a state trial judge. 2 . . .
The notion that a state trial judge has arbitrary and unlimited power to refuse a nonresident lawyer permission to appear in his courtroom is nothing but a remnant of a bygone era. . . . Interstate law practice and multistate law firms are now commonplace. Federal questions regularly arise in state criminal trials and permeate the typical lawyer’s practice. Because the assertion of federal claims or defenses is often unpopular, “advice and assistance by an out-of-state lawyer may be the only means available for vindication.” The “increased specialization and high mobility” of today’s Bar is a consequence of the dramatic change in the demand for legal services that has occurred during the past century. . . .
History attests to the importance of pro hac vice appearances. As Judge Merritt, writing for the Court of Appeals [below] explained: . . .
There are a number of reasons for this tradition. ‘The demands of business and the mobility of our society’ are the reasons given by the American Bar Association in Canon 3 of the Code of Professional Responsibility. That Canon discourages ‘territorial limitations’ on the practice of law, including trial practice. There are other reasons in addition to business reasons. A client may want a particular lawyer for a particular kind of case, and a lawyer may want to take the case because of the skill required. Often, as in the case of Andrew Hamilton, Darrow, Bryan and Thurgood Marshall, a lawyer participates in a case out of a sense of justice. He may feel a sense of duty to defend an unpopular defendant and in this way to give expression to his 983 own moral sense. These are important values, both for lawyers and clients, and should not be denied arbitrarily.
The interest these lawyers seek to vindicate is not merely the pecuniary goal that motivates every individual’s attempt to pursue his calling. It is the profession’s interest in discharging its responsibility for the fair administration of justice in our adversary system. The nature of that interest is surely worthy of the protection afforded by the Due Process Clause of the Fourteenth Amendment. . . . Accordingly, I respectfully dissent from the Court’s summary disposition of a question of great importance to the administration of justice.
1. Leis v. Flynt is an atypical case. Courts generally admit lawyers pro hac vice, although about half of all jurisdictions require association of local counsel. The stated justifications for requiring association with local counsel usually involve concerns about out-of-state attorneys’ familiarity with local practice and procedures, their availability for hearings and service of papers, and their accountability to local disciplinary authorities. Unstated concerns involve economic protectionism and political hostility.
The latter motivation emerged clearly in efforts by certain Southern courts to prevent out-of-state appearances by civil rights attorneys during the 1950s and 1960s. The constitutionality of such practices remains open to question, particularly since the Leis v. Flynt majority did not reach the issue of whether defendants might, in some circumstances, be entitled to representation by out-of-state counsel of their choice. How should that issue be resolved?
2.A more general question involves the appropriateness of easing restrictions on out-of-state lawyers. Absent court approval, attorneys may provide representation only in jurisdictions where they are admitted to the bar. Rule 5.5(d)(1) of the Model Rules of Professional Conduct also permits in-house counsel to provide legal services outside the jurisdictions where they are licensed but only so long as those services “are provided to the lawyer’s employer or organizational affiliates” and also “are not services for which the forum requires pro hac vice admission.” The comment to Rule 5.5 explains that non-locally licensed attorneys may be subject to registration or certification systems that subject them to requirements such as continuing legal education and assessments for client protection funds. As Chapter 13’s discussion of multijurisdictional practice noted, some decisions hold that attorneys may not even offer advice by phone or computer concerning a transaction or dispute arising in a state in which they are not licensed. 98
Attorneys who attempt to avoid unauthorized practice by obtaining admission in multiple jurisdictions bump up against substantial obstacles. Many states require passage of their own bar exam and others will waive 984 exam requirements only for lawyers from jurisdictions that extend the same privileges to the states’ own lawyers.
Such reciprocity rules are difficult to justify from any consumer protection perspective. If experienced out-of-state attorneys are competent to practice, why should it matter how their local bars treat competitors? The situation is tolerable only because bar agencies rarely have sufficient information or resources to enforce prohibitions on out-of-state practice. However, the threat of sanctions can deter attorneys from providing cost-effective representation on multistate matters. Alternatively, clients may have to subsidize an affiliation with local counsel who perform no significant function other than compliance with protectionist admission requirements. Critics thus contend that restrictions on out-of-state attorneys persist largely due to professional self-interest and public inertia. Once admitted to the bar, many lawyers have no incentive to eliminate arbitrary or overbroad restrictions if they lack a substantial interstate practice, particularly where the effect of reform would be to increase the number of potential competitors. How would you address the needs of interstate law practice?
3.For a time, states also imposed state residency requirements, licensing only those lawyers that resided in the particular state. In a series of cases in the late 1980s, however, the Supreme Court held that these residency requirements violated the Privileges and Immunities Clause. 99 Although the Court did not challenge states’ rights to impose exam requirements on out-of-state attorneys, its reasoning suggested decreasing tolerance for protectionist regulation. Similar concerns encouraged the ABA to appoint a Commission on Multijurisdictional Practice and to adopt its recommended revision of Model Rule 5.5(c).
4.Would a national system of bar admission be preferable? Berkeley Law Dean Erwin Chemerinsky notes that in the medical profession, “there’s a national board of medical examiners that sponsors a national licensing exam: doctors don’t have to pass new tests every time they move from one state to another. Shouldn’t there be a similar system in place for lawyers?” 100 How would you respond?
1See generally Charles R. McKirdy, The Lawyer as Apprentice: Legal Education in Eighteenth Century Massachusetts, 28 J. Legal Educ. 124 (1976); William S. Holdsworth, A History of English Law 3–101 (1938).
2Len Yang Smith, Abraham Lincoln as a Bar Examiner, 51 Bar Examiner 37 (1982).
3Id.
4See e.g., Esther L. Brown, Lawyers and the Promotion of Justice 117 (1938) (reporting that 80 to 90 percent of applicants ultimately passed); J. Willard Hurst, The Growth of American Law 292–93 (1950) (reporting that 90 percent passed).
5See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 49, 112–14 (1976); Randall Collins, The Credential Society: An Historical Sociology of Education and Stratification 149–56 (1979). For example, prominent legal ethicist Henry Drinker, like other leaders of the bar, saw a need to protect the profession from “Russian Jew boys . . . up out of the gutter . . . following methods their fathers had been using in selling shoe-strings and other merchandise.” Robert Gordon, The American Legal Profession, 1870–2000, in The Cambridge History of Law in America (Chris Tomlins & Michael Grossberg, eds., 2008) (quoting Drinker).
6See Kristin Booth Glen, When and Where We Enter: Rethinking Admission to the Legal Profession, 102 Colum. L. Rev. 1696, 1716–17 (2002).
7540 F.2d at 750.
8Am. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, Report of the Task Force on Law Schools and the Profession, Narrowing the Gap: Legal Education and Professional Development—An Educational Continuum 138–40 (1992).
9Id. at 278.
10Conf. of Chief Justices, National Action Plan on Lawyer Conduct and Professionalism 32 (1999); Soc’y of Am. Law Teachers, Statement on the Bar Exam, 52 J. Legal Educ. 446 (2002).
11Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession 150 (2000).
12James E. Moliterno, The American Legal Profession in Crisis: Resistance and Response 232 (2013).
13N.Y. City Bar Ass’n Task Force on New Lawyers in a Changing Profession, Developing Legal Careers and Delivering Justice in the 21st Century 78 (2013).
14Rhode, supra note 11, at 51–52. See also Andrea Curcio, A Better Bar: Why and How the Existing Bar Should Change, 81 Neb. L. Rev. 363 (2002) (criticizing states’ arbitrary decisions to raise passing scores); Michael J. Thomas, The American Lawyer’s Next Hurdle: The State-Based Bar Examination System, 24 J. Legal Prof. 235, 256 (2000) (criticizing some states’ refusal to accept transferred multistate bar exam scores from another jurisdiction).
15Linda F. Wightman, Law School Admission Council National Longitudinal Bar Passage Study 27 (1998). The first-time failure rates were 8 percent for whites and 39 percent for African-Americans.
16William C. Kidder, The Bar Examination and the Dream Deferred: A Critical Analysis of the MBE, Social Closure, and Racial and Ethnic Stratification, 29 Law & Soc. Inquiry 547, 570–71 (2004) (reporting Florida pass rates of 79.7 percent for whites and 65.6 percent for non-whites); Diane L. Abraham, Moving Mountains: California’s Latest Quake in the Legal World, ABA (Oct. 26, 2005), https://perma.cc/ESQ6-WB6D (reporting California pass rates of 74.6 percent for whites, 48.2 percent for African-Americans, 53.4 percent for Hispanics, and 65.5 percent for Asians). See Kent D. Syverud, Diversity Trends and Current Issues, Bar Examiner, Nov. 2009, at 21.
17Kidder, supra note 16, at 575–78; Claude Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychol. 613, 616–18 (1997); Glen, supra note 6, at 1701, 1715 (collecting sources).
18466 U.S. at 578 n.31. For similar concerns about passing scores, see Comm. on Legal Educ. & Admission to the Bar, In Opposition to the Board of Law Examiners’ Proposal to Increase the Passing Score on the New York Bar Exam, 58 The Record 97 (2003).
19See Benjamin H. Barton & Deborah L. Rhode, Rethinking Self-Regulation: Antitrust Perspectives on Bar Governance Activity, 20 Chapman L. Rev. 267 (2017).
20See Glen, supra note 6, at 1703–18.
21Herb D. Vest, Felling the Giant: Breaking the ABA’s Stranglehold on Legal Education in America, 50 J. Legal Educ. 494, 502 (2000).
22Suzanne Darrow-Kleinhaus, A Response to the Society of American Law Teachers Statement on the Bar Exam, 54 J. Legal Educ. 442 (2004); Susan Case, Licensure in the Ideal World, Bar Examiner, Nov. 2005, at 26–30; Randall T. Shepard, On Licensing Lawyers: Why Uniformity is Good and Nationalization is Bad, 60 N.Y.U. Ann. Surv. Am. L. 453, 459 (2004).
23Michael T. Kane, Reflections on Bar Examining, Bar Examiner, Nov. 2009, at 6, 7.
24Erwin Griswold, In Praise of Bar Examinations, 42 Bar Examiner 136 (1973).
25Robert B. Fellmeth, Democracy 101 and the State Bar of California, L.A. Daily J., Aug. 24, 2017.
26Cheryl Miller, Nearly 7 in 10 Flunked California’s February 2019 Bar Exam, Recorder, May 17, 2019.
27Fellmeth, supra note 25.
28Karen Sloan, ABA’s Tougher Bar Pass Rule for Law Schools Applauded, Nat’l L.J. May 21, 2019.
29Report of the Working Group on Lawyer Conduct and Professionalism to the Conference of Chief Justices, A National Action Plan on Lawyer Conduct and Professionalism (1998); Linda Stewart Dalianis & Hulette H. Askew, Three States Add or Revise Motion Admission Rules: New Hampshire and Vermont Establish Reciprocity and Georgia Resurrects Comity Admission, Bar Examiner, Feb. 2003, at 16 (discussing abandonment of the Tri-State proposal).
30Linda S. Dalianis & Sophie M. Sparrow, New Hampshire’s Performance-Based Variant of the Bar Examination: The Daniel Webster Scholar Program, Bar Examiner, Nov. 2005, at 23–26.
31Judith Wegner, The Carnegie Foundation’s Educating Lawyers: Four Questions for Bar Examiners, Bar Examiner, June 2011, at 11, 21.
32Clark Cunningham, The Professionalism Crisis: How Bar Examiners Can Make A Difference, Bar Examiner, Nov. 2005, at 6, 7.
33Nigel Duncan, Gatekeepers Training Hurdlers: The Training and Accreditation of Lawyers in England and Wales, 20 Ga. St. U. L. Rev. 911 (2004); Murray Hawkins, Australian Legal Education and Bar Admissions, Bar Examiner, Feb. 2008; Paul Maharg, Transactional Learning Environments and Professional Legal Education in Scotland, Bar Examiner, Nov. 2005, at 9; Richard Zitrin et al., Legal Ethics in the Practice of Law 842 (3d ed. 2006); John M. Law, Canadian Bar Admissions, Bar Examiner, Nov. 2005, at 14.
34For detail, see the website of the National Conference of Bar Examiners, http://www.ncbex.org/. For states’ efforts to individualize their requirements, see Otto Stockmeyer, The Uniform Bar Exam: Whither Michigan?, Mich. Bar J., June 2019, at 46–47.
35For a comprehensive history and empirical study, see Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985). For the Pennsylvania cases, see id. at 501.
36Id. at 516.
37Howard Mintz, Infamous Writer Aims to Practice Law in California, San Jose Mercury News, Nov. 4, 2013, at A1.
38Maura Dolan, Glass Loses Bid for Law License, L.A. Times, Jan. 28, 2014, at AA1.
39Am Bar Ass’n, Comprehensive Guide to Bar Admission Requirements (Margaret Fuller Corneille & Erica Moeser eds., 2007).
40 Id.
41Rhode, supra note 35, at 538, 545.
42Joseph A. Volerio, The Impact of the Character and Fitness Honesty and Financial Responsibility Requirements on Underprivileged Groups, 30 Geo. J. Legal Ethics 1093 (2017); Keith Swisher, The Troubling Rise of the Legal Profession’s Good Moral Character, 82 St. John’s L. Rev. 1037 (2008).
43For context, see studies summarized in Deborah L. Rhode, Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation and Immigration Proceedings, 43 Law & Soc. Inquiry 1027 (2018); Walter Mischel & Yuichi Shoda, A Cognitive Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure, 102 Psychol. Rev. 246 (1995).
44Mischel & Shoda, supra note 43.
45Leslie C. Levin et al., The Questionable Character of the Bar’s Character and Fitness Inquiry, 40 Law & Soc. Inquiry 51, 52 (2015).
46Id. at 79.
47James Podgers, Endorsing Early Treatment, ABA J., Mar. 2008, at 65.
48Stanford Law School, Center on the Legal Profession & Criminal Justice Center, Unlocking the Bar: Expanding Access to the Legal Profession for People with Criminal Records in California 23 (2019) [hereinafter Unlocking the Bar]. At current rates, one in three black men and one in six Latino men will spend time in prison at some point in their lives, compared with one of every seventeen whites. Deborah L. Rhode, Character in Criminal Justice Proceedings: Rethinking Its Role in Rules Governing Evidence, Punishment, Prosecutors and Parole, 45 Am. J. Crim. L. 353, 388 (2019). Such disparities are partly attributable to racial bias at every level of the criminal justice system. Id.
49Unlocking the Bar, supra note 48, at 42.
50Id. at 41.
51Id. at 31.
52Id. at 21.
53For context, see cases discussed in Martha K. Treese, Rehabilitation—An Update, Bar Examiner, Feb. 2003, at 6, 7–11.
54Thomas Zambito, Ex-Cons Ply Other Side of Law by Practicing It; No Longer in Prison, New Attorneys Yearn for a Second Chance, N.Y. Daily News, Aug. 20, 2006, at 30.
55Nathan J. Robinson, Nothing Will Ever Be Enough: Dwayne Betts Did Everything Right, and Then Some. So Why Can’t He Practice Law?, Current Affairs, August 4, 2017, https://www.currentaffairs.org/2017/08/nothing-will-ever-be-enough.
56Reginald Dwayne Betts, Getting Out, N.Y. Times Magazine, Oct. 20, 2018, at 52.
57Tony Mauro, From Felony Conviction to Bar Exam, Nat’l L.J., Oct. 6, 2014.
58Unlocking the Bar, supra note 48, at 20.
59Rhode, supra note 11, at 155.
60Unlocking the Bar, supra note 48, at 76.
61Theresa M. Keeley, Good Moral Character: Already an Unconstitutionally Vague Concept and Now Putting Bar Applicants in a Post-9/11 World on an Elevated Threat Level, 6 U. Pa. J. Const. L. 844 (2004).
62Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admission, 39 Cal. W. L. Rev. 1 (2002).
64The issue has come up with less frequency since amendments to the Bankruptcy Code prevented discharge of such loans absent “undue hardship” on the debtor and his or her dependents. 11 U.S.C. § 523.
65481 S.E.2d at 516 (Benham, J., dissenting).
66See evidence summarized in Deborah L. Rhode, Character: What it Means and Why it Matters 80 (2019), and Deborah L. Rhode, Character and Criminal Justice Proceedings: Rethinking Its Role in Rules Governing Evidence, Punishment, Prosecutors, and Parole, 45 Am. J. Crim. L. 353, 370 (2019).
67Jane Gross, A Killer in Law School: Admirable or Abominable?, N.Y. Times, Sept. 13, 1993, at A14 (quoting John Greene).
68These hypotheticals are drawn from the Am. Bar Ass’n Section of Legal Education and Admission to the Bar, Model for Dialogue: Bar Examiners and Law Schools (1998). For the incidence of cheating and a proposal that only aggravated misconduct be considered disqualifying, see Caroline P. Jacobson, Academic Misconduct and Bar Admissions: A Proposal for a Revised Standard, 20 Geo. J. Legal Ethics 739, 740 (2007).
69Matter of Anonymous, 166 A.D. 3d 1468 (2018) (denying admission to an applicant with student loans in excess of $580,000 where applicant’s “cursory and cavalier” responses to questions created doubts about his “good faith intentions” to repay them).
70Nat’l Council of Bar Examiners, Comprehensive Guide, Chart One, http://www.ncbex.org/assets/media_files/Comp-Guide/CompGuide.pdf.
71Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1621.
73Maura Dolan, Court takes Up Bid of Illegal Immigrant to be Attorney, L.A. Times, May 17, 2012, at A1.
75Daina Beth Solomon, Immigrant Lawyer Facing Big Challenges, S.F. Daily J., Jan. 7, 2015, at A1.
76Fla. Bd. of Bar Examiners re Questions to Whether Undocumented Immigrants Are Eligible for Admission to Fla. Bar, 134 So. 3d 432 (Fla. 2014).
77Alan Gomez, New Fight for Immigrants, USA Today, July 2, 2012, at A3.
78Howard Mintz, A Simple Dream: A Complex Debate, San Jose Mercury News, July 16, 2012, at A1 (quoting Ira Mehlman).
80Department of Justice Analysis, 28 C.F.R. § 35.104 (1991).
81Am Bar Ass’n, Comprehensive Guide to Bar Admission Requirements (Margaret Fuller Corneille & Erica Moeser eds., 2007).
82Am Bar Ass’n, Model Rule on Conditional Admission to Practice Law (Feb. 2008).
83Applicants v. Texas St. Bd. of Bar Examiners, 1994 WL 923404 (W.D. Tex. 1994).
84Press Release, U.S. Department of Justice, Department of Justice Reaches Agreement with the Louisiana Supreme Court to Protect bar Candidates with Disabilities (Aug. 15, 2014).
85Anna Stolley Persky, A Matter Over Mind, ABA J., June 2014, at 20–21. For discussion of the new standard and critiques of many states’ existing inquiries, see Alyssa Dragnich, Have You Ever . . . ? How State Bar Association Inquiries into Mental Health Violate the Americans with Disabilities Act, 80 Brooklyn L. Rev. 677 (2015).
86Press Release, Am. Bar Ass’n, ABA Strengthens Policies on Mental Health Forms for Bar Admissions, Law School Financing (Aug. 4, 2015).
87Yale Law School, Bar Exam Application Questions Pertaining to Mental Health, School/Criminal History, and Financial Issues as of Fall 2017.
88 Stephanie Denzel, Second Class Licensure: The Use of Conditional Admission Programs for Bar Applicants with Mental Health and Substance Abuse Histories , 43 Conn. L. Rev. 890, 912 – 27 (2011) .
89Melody Moezzi, Lawyers of Sound Mind?, N.Y. Times, Aug. 6, 2013, at A15. For bar examiners’ response to a hypothetical involving applicants with suicide attempts and bipolar disorder, see Peter Ash, Predicting the Future Behavior of Bar Applicants, Bar Examiner, Dec. 2013, at 1, 7–12.
90Deborah L. Rhode, Preparing Leaders: The Evolution of a Field and the Stresses of Leadership, 58 Santa Clara L. Rev. 411 (2018).
91Jerome M. Organ et al., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ. 116, 140–41 (2016).
92Id. at 142.
93Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions, and the Americans With Disabilities Act, 49 UCLA L. Rev. 93 (2001).
94Nat’l Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017).
95Am. Bar Ass’n, Comm’n on Mental and Physical Disability Law, Report to the House of Delegates 17 (1994).
96Bauer, supra note 93. See also Alyssa Dragnich, Have You Ever…? How State Bar Association Inquiries into Mental Health Violate the Americans with Disabilities Act, 80 Brooklyn L. Rev. 677, 684 (2015). The American Psychiatric Association recommends that psychiatric history not be the subject of admissions inquiries because it is not an accurate predictor of fitness. See Clark v. Va. Bd. of Bar Examiners, 880 F. Supp. 430, 435 (E.D. Va. 1995).
5The dissenting opinion of Mr. Justice Stevens argues that a lawyer’s right to “pursu[e] his calling is protected by the Due Process Clause . . . when he crosses the border” of the State that licensed him. Mr. Justice Stevens identifies two “protected” interests that “reinforce” each other. These are said to be “the ‘nature’ of the interest in pro hac vice admissions or the ‘implicit promise’ inhering in Ohio custom.” The first of these lawyer’s “interests” is described as that of “discharging [his] responsibility for the fair administration of justice in our adversary system.” As important as this interest is, the suggestion that the Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention.
2 Although the Court does not address it, this case also presents the question whether a defendant’s interest in representation by nonresident counsel is entitled to any constitutional protection. The clients, as well as the lawyers, are parties to this litigation. Moreover, the Ohio trial judge made it perfectly clear that his ruling was directed at the defendants, and not merely their counsel. . . . A defendant’s interest in adequate representation is “perhaps his most important privilege” protected by the Constitution. . . . Whatever the scope of a lawyer’s interest in practicing in other States may be . . . the client’s interest in representation by out-of-state counsel is entitled to some measure of constitutional protection. . . .
98See, e.g., Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1 (Cal. 1998).
99Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); Frazier v. Heebe, 482 U.S. 641 (1987); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988).
100Erwin Chemerinsky, It’s Time for California To Accept the Uniform Bar Exam, L.A. Times, May 11, 2015.
For aspiring lawyers, law school is the essential gateway to legal practice. Yet the role of legal education has long been controversial. There has been a built-in tension between the goal of equipping students with necessary technical skills and the goal of instilling professional values emphasizing the lawyer’s social role. And, as the cost of law school has rapidly increased over the past three decades and the legal market has changed, questions about the practical and social relevance of legal education, whose interests it serves, and how well it advances the public good have become increasingly contested. What should contemporary law schools be teaching students? What role should legal education play in inculcating values of public service and ethical responsibility? How well do law schools fulfill their obligation to promote a diverse profession? This chapter explores the critical role of legal education in producing effective and ethical lawyers, while also promoting professional diversity and access to justice. It is organized around three main themes. Part A discusses the structure of legal education, offering an overview of the historical origins of law school and contemporary issues concerning accreditation and rankings. A key focus is how law schools are run and who they serve. Part B explores the goals, methods, and outcomes of legal education, with attention to how well law school pedagogy prepares students and how law school performance should be assessed. Part C concludes by considering the law school experience for students, highlighting ongoing challenges of promoting diversity and maintaining student health and satisfaction.
As Chapter 15 on bar admissions indicated, apprenticeship was the dominant system for legal education during the American legal profession’s formative years. Most of the legal education that occurred outside the apprenticeship system centered in a few small for-profit law schools. The most famous of these was the Litchfield Law School in Connecticut. Formally established in 1784, it focused on adapting Blackstone’s Commentaries to American contexts and was influential in the development of the nation’s early legal culture.1 These independent schools, and a small number of university counterparts, fared poorly 986during the Jacksonian populist era, when enrollment flagged. In 1840, the nation had only nine university-affiliated law schools with a total of 345 students.2
The characteristic features of modern legal education did not emerge until after the Civil War—when they came to the fore at Harvard Law School. The development had much to do with the appointment of Charles Eliot to the university’s presidency and Christopher Columbus Langdell to the newly created post of dean of the law school in 1870. Both had great faith in scientific methodology and its application to legal education. Langdell’s case method attempted to derive general principles of law from appellate decisions in the same way that scientists sought to extract rules of nature from biological specimens. Langdell’s goals were to institutionalize the case method and the Socratic style of teaching, and to establish law school as a three-year post-graduate requirement. Although students initially resisted Langdell’s teaching approach and could “see nothing in the system but mental confusion and social humiliation,” it quickly became the dominant model.3
These initiatives coincided with a period of increased concern about educational standards within the profession and the culture generally. The American Bar Association (ABA), formed in 1870, established a Committee on Legal Education that soon recommended tighter admission standards. One of its first proposals was for states to require attorneys to complete three years of law school. Formed in 1900, the Association of American Law Schools (AALS), soon echoed the ABA’s call. The effort succeeded—and by the turn of the century, there were over 100 university-affiliated law schools, and over the next several decades, more schools opened their doors.4 States soon began accepting law school attendance as a substitute for apprenticeship and such attendance became the dominant method of professional training. As historians have pointed out, part of the impetus for upgrading bar admission requirements was overtly exclusionary: the bar wanted to curtail competition and undercut independent law schools, which catered mostly to first- and second-generation immigrants, many Jewish and Catholic, in order to “purify the stream at its source.”5
This formalization of professional education was not unique to law. And the trend was not without its critics. One of the most prominent was sociologist Thorstein Veblen, who maintained that “vocational” schools like law “belong[ed] in the modern university no more than a school of 987fencing or dancing.”6 Other commentators, although sympathetic towards efforts to make professional education more rigorous, were unpersuaded that all forms of legal practice required the same academic preparation. That view was reflected in a celebrated 1921 Report for the Carnegie Foundation, Training for the Public Profession of Law. At the time of the Report’s release, the American bar varied considerably in its educational standards. The author, Alfred Reed, was a nonlawyer who advocated for maintaining that diversity. According to Reed, the profession should recognize the dual nature of legal education and legal practice—i.e., the need for an elite corps of highly qualified lawyers to serve corporate and governmental clients, and the need for general practitioners, trained in night- and part-time programs accessible to the working classes, to fill more routine legal needs. By institutionalizing this division, through two separate exams for two divisions of lawyers, the profession could accommodate concerns of quality and accessibility. Both the ABA and the AALS flatly rejected that recommendation.
Controversies over appropriate requirements for entry to law school and the profession have been one aspect of a broader debate over the structure of legal education. Who should teach what, to whom, for how long, and by what method have all been matters of longstanding dispute. The following discussion focuses on the most important and most contested issues.
About four-fifths of states require applicants to graduate from an ABA-accredited law school as well as pass a bar exam in order to gain admission to practice. This gives the ABA enormous power over the form and content of legal education. In exercising this power, the ABA’s Council of the Section of Legal Education and Admission to the Bar has developed detailed accreditation standards concerning matters such as classroom hours, student-faculty ratios, use of adjunct professors, library resources, and so forth. Once a school has established its compliance with these standards, it is subject to a site visit every seven years to ensure its continued adherence to accreditation requirements. As discussed below, many of the controversies about legal education have centered on the question of whether the ABA’s one-size-fits-all approach to accreditation serves the interest of law students and the broader profession.7
Not all states have limited admission to graduates from ABA accredited schools. Some have developed their own accreditation systems, and California permits practice by graduates of unaccredited schools who have passed the bar exam (California is one of the few states 988that also still permit entry by apprenticeship). California’s approach to unaccredited schools has raised a separate set of concerns. Critics claim that many of these schools charge high tuition but fail to deliver quality instruction, and also fail to provide accurate information on high dropout and low bar passage rates.8
Despite significant dissatisfaction with the current accreditation structure, there is little consensus about how to fix it. Some educators and bar leaders would like to eliminate or substantially curtail accreditation requirements to give institutions more leeway to customize programs in order to match students’ diverse needs and demands. These commentators argue that if accreditation were eliminated or curtailed, institutions could offer a range of specialties and could vary in their reliance on adjuncts and online courses, degree requirements, and in the relative importance they attached to practical skills and legal scholarship. From this perspective, a free market of reasonably well-informed students and legal employers would promote more experimentation, competition, and ultimately a more cost-effective legal education than the current approach.
By contrast, other lawyers and legal academics question how many students and legal employers would have sufficient knowledge to create a well-functioning free market. Some also fear that, in the absence of strict accreditation standards, law schools might need to reduce costs and quality in order to compete for the applicants who favor a “less is more” approach to legal education, regardless of its impact on the public.9
Finally, some bar leaders would like to tighten, not loosen, accreditation standards in certain areas. An influential 1992 report by an ABA Task Force on Law Schools and the Profession, Narrowing the Gap (the MacCrate Report), identified ten core skills and four central values necessary for any “well-trained generalist to practice law competently and professionally.” The “Fundamental Lawyering Skills” section of the report describes functions common to nearly all areas of practice: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute-resolution procedures, (9) organization and management of legal work, and (10) recognition and resolution of ethical dilemmas.10 Providing training in all of these areas would require enriching, not shortening, current degree programs.
989Part of what makes consensus in this area so difficult is that legal education has multiple constituencies with competing agendas. Law schools are expected to produce both “Pericles and plumbers”—lawyer-statesmen and routine service providers.11 Faculty and students have differing interests, and ones that are not necessarily identical with those of the ultimate consumers—clients and the public.
Consider one example. Periodically, reformers suggest shortening law school from three years to two, which would decrease students’ costs and get them into the workforce more quickly. The downside, obviously, would be that students would graduate having studied less law.
In the following excerpt, federal judge and law professor Richard Posner argues for “letting the market decide.” If you were the federal official charged with overseeing law school accreditation structures, would you agree with his proposal?
Richard A. Posner, “Let Employers Insist If Three Years of Law School Is Necessary”
San Francisco Daily Journal, December 15, 1999, A4.
We have no theory of education, and so the only way an educational policy or program can be evaluated is by subjecting it to competition. When government prescribes educational policy, not just for public schools but for all schools, it thwarts the competitive process. That is the situation with regard to legal education.
Government has decreed that anyone who wants to be a lawyer must go to law school for three years. As a result, we have no experimental or otherwise empirical basis (and no compelling theoretical reason, simply because as I have said there is no good theory of education, including legal education) for believing that law school has to take so long, at enormous cost; not just the tuition, . . . but the foregone income that the student would have had, had he been working instead of going to school.
Graduate schools of business grant an M.B.A. after only two years, and the business world seems not to be suffering as a result of the “abbreviated” education that their students receive. Business education, not incidentally, is an unregulated branch of education. The two-year M.B.A. is the upshot of a competitive process among business schools.
It will be argued that law students can’t make a judgment whether they need a third year of law school; they are too immature and too ignorant about law. Maybe so. But employers know whether a third year of law school is necessary. If they think it is, they will not hire students who have not completed a third year of law school, or they will pay students who leave earlier much less. . . . There is no need for government to do the insisting.
990I am willing to concede the case for some paternalism. Some newly graduated lawyers hang out their own shingle rather than going to work for a law firm or other knowledgeable employer, and perhaps consumers need protection from the under-educated lawyer, if that is how a person who has not completed the third year of law school should be described. If consumer protection is needed in this area, it can be provided by stiffening the bar exam, or perhaps by giving a special bar exam to students who don’t complete the third year, or perhaps by confining the title “lawyer” to the three-year graduate and assigning another title, such as “legal advocate” or “legal counselor” to practitioners who have not had three years of law school.
Courts, too, need protection from lawyers who lack the skills or experience to handle a trial. But the necessary protection can be obtained by court rules requiring demonstrated skills and experience, not completion of an artificially determined period of schooling.
I don’t think the deregulation of legal education would lead to the disappearance of the third year. Many employers and many students may decide that the educational benefits of a third year exceed the costs. What I think is certain, however, is that removing an artificial barrier to competition will result in a better third year. The law faculties will no longer have a captive audience. They will have to demonstrate to students and employers that the third year provides real value added to the students and to the profession. . . .
1.In widely publicized remarks made in 2013, President Barack Obama, himself a Harvard-educated lawyer, supported reconsidering the third year of law school: “I believe . . . that law schools would probably be wise to think about being two years instead of three years. . . . The third year [students] would be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.”12 After the Great Recession, a few law schools, including Northwestern, instituted “accelerated JD programs” that permitted students to earn their JD in two years.13 Although those schools did not offer any discount in tuition and required two-year graduates to pay the same total fees as three-year graduates, the accelerated programs enabled students who graduated early to gain an additional year’s worth of income. Northwestern suspended its program in 2015, citing a lack of enrollment.14 As an alternative, it (and other schools) instituted a two-year J.D. program for students with foreign law degrees, giving them credit for one year’s worth of 991foreign studies, and permitting them to enter law school outside of the regular admissions processes (so as not to affect the school’s ranking).
2.As Obama’s remarks underscore, a defining challenge of contemporary legal education is cost. Over the last three decades, the price of a law degree has increased approximately three times faster than the average household income. Spiraling costs resulted from, among other things, higher merit-based financial aid, higher faculty salaries, lower faculty-student ratios, expanded skills and writing instruction, more intense clinical instruction, improved technology, additional bar preparation, and expanded student services.15
Many law school leaders do not believe that the accreditation structure is the main factor driving these increased costs (pointing instead to the constraints of ranking systems, discussed below). A recent U.S. Government Accountability Office (GAO) study found that most school administrators say they would continue to meet or exceed accreditation standards, even if they were not required to do so.16 On the other hand, experts also acknowledge that accreditation standards do inhibit experimentation with lower-cost alternatives.17
Today’s highly expensive system raises serious concerns. To finance their education, many graduates are accumulating debt that may be difficult to pay off in the increasingly competitive job market. In 2014, about one-third of recent law graduates did not find full-time employment requiring bar passage ten months after graduation. Although that percentage declined by 2017, more than a quarter of recent graduates still lacked legal employment.18
These problems have attracted the attention of vocal critics. In 2011, a New York Times editorial announced that “American legal education is in crisis” and claimed that the majority of schools are “stuck in an outdated instructional and business model.” It cited issues such as crushing student loans, bleak job prospects, an inability to meet the needs of Americans of limited income, and the inadequacy of practical training. In a National Law Journal debate, “Are Law Schools in Crisis?,” Professor Brian Tamanaha reviewed the figures on student debt and employment and concluded that “law schools are not in crisis,” but their graduates are. In a subsequent New York Times op-ed, Tamanaha made his case:
The economics of legal education are broken. The problem is that the cost of a law degree is now vastly out of proportion to the economic opportunities obtained by the majority of graduates. The average debt of law graduates tops $100,000, and most new lawyers do not earn salaries sufficient to make the monthly payments on 992this debt. More than one-third of law graduates in recent years have failed to obtain lawyer jobs. Thousands of new law graduates will enter a government-sponsored debt relief program, and many will never fully pay off their law school debt.
How did we get into this mess? And how do we get out?
Two factors have combined to produce this situation: the federal loan system and the American Bar Association-imposed accreditation standards for law schools. Both need to be reformed.
First, consider the loan system. For more than three decades, law schools have steadily increased tuition because large numbers of students have been willing and able to pay whatever price the schools demanded. . . . The reason that students have been able to pay such astronomical sums is that the federal government guaranteed student loans from private lenders, and now it supplies the loans itself with virtually no limits.
To restore some economic rationality, the federal loan system needs to demand greater accountability from law schools: those with a high proportion of recent graduates in financial trouble should lose their eligibility to receive money from federal loans. (A similar requirement is currently applied to for-profit colleges.)
The money itself also needs to be reined in. One option is to cap the total amount that each law student can borrow from the government (at, say, a maximum of $125,000). Law schools would then be forced to set tuition with this limit in mind. A flaw of this proposal is that, to reap additional revenue, law schools could simply enroll more students, which would only worsen the oversupply of law graduates.
So another option is to cap the total amount of federal money that any individual law school can receive. A number of law schools now get about $50 million annually in loan money for students directly from the government. Placing an across-the-board cap on total federal loan money (of, say, $40 million) would force law schools to control tuition as well as enrollment.
Whichever cap is chosen, it will function properly only if the government refuses to guarantee private loans and if private loans can be discharged in bankruptcy, which would make banks leery of lending money to law students who are unlikely to repay. To make up for this, the law schools themselves would have to extend loans, thereby aligning their interests with the success of their students.
Then there’s the problem of the American Bar Association-imposed accreditation standards. In theory, these standards, put in place a century ago at the urging of legal educators, ensure a certain level of quality by requiring every law school to be run like an expensive research university—limiting, for instance, the use of adjuncts and teachers on contract. In practice, however, by imposing a “one size fits all” template, these standards ensure that there is little differentiation among law schools—no lower-cost 993options and no range of choices comparable to what exists at the undergraduate level among community colleges, teaching colleges and research universities.
One solution to this problem is to strip away the accreditation requirements that mandate expenditures to support faculty scholarship—for example, deleting the requirement that the bulk of professors be in tenure-track positions, removing limits on teaching loads, not requiring paid research leaves for professors, not requiring substantial library collections and so forth. This would allow some law schools to focus on training competent lawyers at a reasonable cost while others remained committed to academic research. Law students would then be able to choose the type of legal education they desired and could afford.
If we don’t change the economics of legal education, not only will law schools continue to graduate streams of economic casualties each year, but we will also be erecting an enormous barrier to access to the legal profession: the next generation of American lawyers will consist of the offspring of wealthy families who have the freedom to pursue a variety of legal careers, while everyone else is forced to try to get a corporate law job—and those who fail will struggle under the burden of huge law school debt for decades.
The complexion of the legal profession, and our legal system, will suffer as a result.19
In rebuttal, Philip Schrag argues that Tamanaha’s calculations overlook significant federal programs that allow graduates to repay less than their full indebtedness.20 These include Income-Based Repayment and Pay As You Earn (PAYE) programs that cap annual loan repayment at 10 percent of discretionary income, and after twenty years forgive remaining debt. Schrag also argues that Tamanaha’s proposal would create a two-tiered system of legal education (two-year versus three-year programs), and further stratify the legal profession. Finally, Schrag is skeptical that two-year law schools will offer more practical training than their three-year counterparts. Do you agree with Tamanaha’s diagnosis of the problem? What about his proposed cures? What other approaches might be desirable?
3.In contrast to arguments that accreditation increases costs in ways that potentially harm students, Ben Barton raises another concern with accreditation: that it does too little to protect students against poor quality legal education. In Barton’s account, the critical problem facing law schools in the “lost decade” after the Great Recession was the dramatic decline in law school applications (down roughly 25 percent from 2008 to 2018).21 This destabilized school finances dependent on student tuition (which itself had 994risen dramatically since the 1980s). Because schools needed to stay afloat, while maintaining their status position in the rankings hierarchy (based in part on the quality of incoming applicants, measured by LSAT scores, undergraduate GPAs, and bar passage rates), they faced a Hobson’s choice. Either they could maintain class size at pre-recession levels to keep hold of tuition dollars at a cost of reducing class quality (and potentially falling in the rankings), or they could maintain quality but sacrifice size.22 As Barton shows, most schools did a bit of both. However, not all schools were similarly situated in addressing the challenge, with those at the high end of the status hierarchy best equipped to continue attracting strong students from the (smaller overall) pool of applicants, while making nips and cuts to class size and costs. Schools lower down in the rankings faced increasingly difficult choices and many schools, especially those near the bottom, chose to reduce admissions standards to the bare minimum and raise tuition, while encouraging students to take out the maximum in loans.23 The result for these students was predictably disastrous: In 2016, the average student debt at Thomas Jefferson and Whittier law schools was around $180,000 (more than any other school), while the California bar passage rate for those schools’ students was 31 percent and 21 percent respectively (the lowest of all ABA-accredited schools in California).24
How could the ABA let this happen? As Barton recounts, when the ABA proposed tightening up bar passage requirements, it faced a huge backlash from deans and ultimately chose to maintain the existing standard, which only requires schools to show that, in three of the last five years, at least 75 percent of graduates passed the bar (or that the first-time bar passage rate was not more than 15 percent below the jurisdictional average).25 However, this loose standard was riddled with exemptions that enabled bar passage to drop well below 75 percent.
When faced with pressure to address these problems from the Department of Education and consumer advocates, the ABA passed a new rule creating a rebuttable presumption of noncompliance if a school’s attrition rate (the percentage of students who drop out and do not transfer) rises above 20 percent. In 2017, fifteen schools had attrition rates above this level, including Thomas Jefferson, Golden Gate, and Arizona Summit (the latter of which is one of the six for-profit law schools in the United States). Given Arizona Summit’s abysmal record of attrition and low bar passage (27 percent in 2017), combined with its students’ staggering average debt loads (nearly $180,000 in 2016), the ABA was finally forced to act. In 2018, it initiated its first-ever disaccreditation action against the school.26 To avoid the same fate, Whittier Law School closed its own doors the same year. Arizona Summit, represented by former U.S. Solicitor General Paul Clement, sued the ABA on due process grounds, arguing that it had applied 995its accreditation standards in an “arbitrary and capricious” fashion. The school pointed out that it was in compliance with the bar passage rules (its two-year rate as of 2018 was 60%).27 The parties settled the suit in early 2019 and Arizona Summit has not been disaccredited. Do you think this is the right outcome? For its part, Arizona Summit maintains that it provides opportunities for students from nontraditional backgrounds, including many first-generation students, to become lawyers and that it fully discloses its costs and their bar performance. Who do you think is right?
4.What should the ABA do about schools with extremely low bar passage rates? As noted above, when the ABA Section on Legal Education and Admissions proposed a requirement that at least 75 percent of a school’s graduates pass the bar after two attempts, the suggestion met with substantial criticism. Among the most vocal opponents were deans of law schools that enrolled comparatively large numbers of students of color with low LSATs and GPAs.28 Do you think the ABA was right to abandon the proposal? What should the rule be? Does the fact that low-performing schools enroll disproportionate numbers of students of color and first-generation students cut in favor of or against tightening standards, given that these students will face the greatest financial hardship if they do not pass the bar? If the ABA will not change its rules and enforce them aggressively, should low-performing schools continue to receive permission from the Department of Education to receive taxpayer-backed federal loans, which are the main source of law school financing?29
Schools with low bar passage and job placement statistics often argue that students should be permitted to make their own decisions about the financial tradeoffs of pursuing a law degree in the marketplace for legal education. However, critics note that, on issues like bar passage and employment rates, schools do not have a great track record of transparency and the accreditation rules often do not go far enough to force out information that prospective students really need to determine whether a particular law school is worth the investment risk. Beginning in 2012, after reports that schools were hiring graduates back on short-term contracts to boost employment numbers and U.S. News rankings, the ABA attempted to increase transparency. It required schools to break out employment statistics for graduates in full-time (FT), long-term (LT) jobs that were bar passage required (BPR), those that did not require bar passage but were J.D. advantaged (JDA), and a few other categories.30 In addition, the Department of Education under the Obama administration promulgated the “gainful employment rule,” requiring schools to have graduates with debt-to-income 996ratios of less than 12 percent two years after graduation in order to qualify for federal loans. However, that rule was passed late in the Obama administration and the Trump Department of Education seems disinclined to follow it. Moreover, the ABA still does not require schools to hit any employment benchmark to maintain accreditation, and critics suggest that students targeted by low-performing schools may have difficulty assessing the available outcome data. As a result, some commentators believe the accreditation standard should be tightened to require schools to show that at least 60 percent of graduates have FTLT, BPR, or JDA jobs in two or more of the last five graduating classes.31 Would you support that proposal? How much would it help?
5.As the case of Arizona Summit highlights, for-profit law schools are particularly problematic since their primary goal is to make a return on students’ tuition dollars, which gives such schools an incentive to charge as much as possible (encouraging students to max out on federal loans), while providing the least costly services. As noted above, the Obama Department of Education cracked down on these so-called “InfiLaw” schools (named after the for-profit InfiLaw Corporation) by passing the gainful employment rule and suspending the right of schools to receive federal loans. Most prominently, in 2016, the Department denied InfiLaw-owned Charlotte Law School’s application to be recertified for federal loans, which, along with the ABA’s decision to place the school on probation, sent Charlotte into a death spiral. Charlotte and Florida Coastal joined the Arizona Summit suit against the ABA over its accreditation standards described above. Given the risks to students, should for-profit law schools be permitted? Should they be more closely regulated? Why?
Research on these schools has shown that they market themselves to students of color with low LSATs under the banner of promoting “access to justice.”32 Riaz Tejani argues that such practices exploit these students by charging them tuition that is often higher than elite schools for an education that offers a very low chance of success: promising “social inclusion” that is “devoid of social protectionism.”33 How can, or should, regulators respond?
6.How, and how much, should the ABA assess law school outcomes, and what should follow from those assessments? We have already discussed the importance of tracking law schools’ employment outcomes and the problem of transparency. What about tracking learning outcomes? In 2017, the ABA created new requirements designed to focus less on inputs, such as faculty/student ratios and library resources, and more on outputs, such as the effectiveness of instruction and the competence of graduates.34 Standard 302, in particular, was amended to state that every law school “shall establish learning outcomes that shall, at a minimum, include competency” in areas covering “substantive and procedural law,” “[l]egal analysis and 997reasoning, legal research, problem-solving, and written and oral communication,” “ethical responsibilities,” and other professional skills. Schools are required to base assessment on these learning goals and to periodically “determine the degree of student attainment of competency in the learning outcomes.”35 It is not clear whether this shift will prompt rigorous reappraisal of law school pedagogy or whether schools will view it as another bureaucratic hoop to jump through. What is your view? How should schools assess the impact of what goes on it the classroom? Are student course evaluations sufficient?
You have been appointed to a new ABA Task Force on the Future of Legal Education to reevaluate accreditation standards in light of recent challenges. What would you recommend concerning accreditation? How much uniform national regulation is appropriate? Should the ABA encourage greater diversity among law schools? Some have wondered whether the current “one size fits all” model of uniformity makes sense, given the varied tasks of contemporary legal service providers.36 For example, should institutions be able to offer one-year or two-year programs to train individuals to offer a restricted range of services?37 Should the ABA promote changes that, as Professor Gillian Hadfield argues, “shift from the top-down approach that the ABA now takes in overseeing how people are admitted, taught, and tested in law schools to an approach that emphasizes testing what people can actually do before they enter practice”?38 Would that mean opening up more opportunities for apprenticeship as a route to bar admission? Should all lawyers have to graduate from accredited law schools? Who should decide?
An important factor that many observers believe has adversely affected law school cost, content, and diversity is rankings, particularly those of U.S. News and World Report. Students, faculty, alumni, donors, and funders are all concerned with how well their institutions measure up in comparison with rivals, and rankings have become a crucial index of status. These educational scorecards have had benefits. Some relevant characteristics can be objectively assessed, and schools should be held accountable for their performance. Rankings can supply a counterweight to complacency and a check on puffing. In their absence, applicants would 998undoubtedly encounter an educational “Lake Wobegon,” where all institutions were above average.39
But some argue that the problem with rankings, such as those in U.S. News, is that they assign a single score based on arbitrary weightings of a partial list of characteristics, many of which bear little relation to the quality of education. This pecking order then implies a false precision that assumes undue influence, and skews decisionmaking by applicants and the institutions themselves.
U.S. News algorithms for calculating rankings heavily weight reputation, measured by the subjective perceptions of top administrators and prominent judges and practitioners. As these individuals freely acknowledge, they rarely possess enough systematic knowledge about other institutions to make accurate comparative judgments.40 Those surveyed often depend on word-of-mouth reputations and prior rankings, which create a self-perpetuating dynamic. Past recognition provides a halo effect, which perpetuates high scores even when the evaluator knows nothing about current performance. This explains why Princeton’s and MIT’s law schools do so well even though they do not exist.41 When educational leaders are asked to perform the impossible task of rating institutions for which they lack direct information, many fall back on the only source of data available for that purpose: U.S. News.42
The more objective factors that influence rankings are problematic for other reasons. Almost all of these factors measure inputs, such as the test scores of the entering class, alumni contributions, and library books per student, which receive arbitrary weights and bear no necessary relationship to the quality of the learning experience. The main measure of output is placement rates, which can be subject to manipulation. Worse still, the undue importance of these rankings among students, faculty, employers, and alumni donors has led to various unwelcome practices. Some institutions have fudged the facts or engaged in strategic behaviors, such as giving unjustly low evaluations to close competitors in reputational surveys; denying admission to qualified applicants of color with low test scores or placing them in night or part-time programs that do not count in rankings; manipulating academic leaves and titles to improve student/faculty ratios, or (as mentioned above) hiring their own 999graduates on a short-term basis to improve job placement records.43 Although the ABA changed its rules to require the disclosure of full-time jobs requiring bar passage or a JD, and whether they were subsidized by the school, concerns linger that the emphasis on placement still puts pressure on schools to push students into jobs with earlier hiring deadlines (mostly in the private sector) as opposed to those in the public interest that tend to require bar passage and probationary periods. In 2020, U.S. News will include a measure of “scholarly impact” based on citation counts of a school’s tenured and tenure-track faculty—a measure that many worry will motivate schools to skew hiring toward faculty who prioritize research, especially in larger fields with high citation potential.44
Meanwhile, critics identify other fundamental problems in the way that ranking systems skew law school priorities. The U.S. News framework discourages investment in many areas that enhance educational quality but are not rated, such as access to clinical courses, well-designed public service programs, and a diverse faculty and student body. Instead, the premium placed on reputation encourages overinvestment in scholarship at the expense of teaching, and expensive public relations campaigns that do nothing to improve the learning environment.45 In addition, the emphasis on expenditures per student motivates schools to invest enormous energy in external fundraising that empowers private donors to influence curricular priorities through the creation of substantively focused centers (around issues like technology, business law, the environment, and others), which often carry certificate programs that require students to take prescribed courses. As a result, rankings contribute to curricular fragmentation, pushing students into curricular silos that increase coursework demands as students strive to take bar courses and meet the requirements of specializations.
1.Is there anything that law schools or professional associations could do to counteract rankings’ unwanted effects? The California bar called on U.S. News and World Report to adjust its ranking formula to consider diversity as 15 percent of overall rating.46 Would you support that move or would incremental adjustment simply legitimate a fundamentally flawed system? The ABA Commission on Diversity has proposed educating the public, 1000potential students, and employers about the limits of rankings, and to explore alternative rating systems.47 What other factors should the rankings measure? Should student satisfaction count? What effects might that have on how law school administrators and faculty act?48
2.Should law schools follow the lead of a number of liberal arts colleges and attempt a collective boycott of rankings? Although much of the data used in rankings is publicly available from the ABA, administrators and faculty could refuse to provide reputational information.49 However, if schools fail to supply the data that U.S. News requests, the magazine uses its own estimates, which are skewed in ways that punish noncompliance.50 Prior efforts to organize a law school boycott have foundered because not enough institutions have been willing to risk penalties to undermine the ranking structure.
3.How would you weigh the benefits of rankings against their drawbacks? Are there better ways to provide public information about law schools and to hold them accountable? Why have the few previous attempts to provide alternative rankings been so unsuccessful?
4.Succeeding (or even just maintaining one’s position in) the rankings game requires an enormous investment of resources. As mentioned already, this is partly a function of the U.S. News rankings algorithm itself, which rewards higher expenditures per student, including larger salaries for faculty as well as student financial aid. In addition, it simply costs a lot of money to compete for rankings, such as deep tuition discounts to recruit high-LSAT students and mass mailings of expensive promotional materials that might enhance reputation. These rankings-induced costs are one cause of increased tuition, and the accompanying increased student debt.51 How should law schools address this problem?
B.Goals, Methods, and Outcomes
In preparing students to be effective lawyers and to serve the common good, the law school mission combines client-centered and public-facing goals. As we have suggested throughout this book, promoting these twin goals is at the core of what it means to be a profession, but in practice these goals often conflict. Law school is a microcosm of this broader problem. In the discussion below, we explore the challenge of educating lawyers from the perspective of law schools’ goals, methods, and outcomes. The aim is to assess pedagogy in relation to what the law school experience is designed to do (which of course is contested), and to question how well schools are doing to meet their goals 1001based on objective and subjective factors, including student satisfaction and performance.
1.What Is Law School Designed to Do?
As the history detailed in Part A suggests, what educators and students understand as the mission of law school has long been subject to debate and has shifted over time.52 An example is the move from “scientific” analysis of case law to a greater emphasis on practical training. While there have been external pressures toward conformity (from accreditation and rankings), there have also been ongoing efforts by schools to innovate and differentiate themselves. A prominent 2007 report on the state of legal education by the Carnegie Foundation (known as the Carnegie Report) found that law schools across America, irrespective of geography or status, generally seek to promote three primary goals.
Keep these goals in mind as you consider the discussion below.
2.How Does Law School Train Lawyers?
The Case Method and Its Discontents
One of the most common criticisms of contemporary legal education is the disconnect between its curricular focus and the demands of practice.54 Recent graduates are not “market ready,” and sophisticated clients are less and less willing to subsidize their training.55
1002Part of the problem stems from the slightly schizophrenic role that modern legal education has attempted to play. In seeking to advance legal knowledge as well as convey practical skills, law schools run the risk of doing neither very well. According to many critics, contemporary legal education offers too little theory and too little practice. It provides inadequate training in basic skills and insufficient grounding in disciplines that should inform legal analysis and legal practice, such as economics, psychology, finance, and management. Those criticisms raise questions about law schools’ traditional reliance on the case method and the Socratic discussion format, and their inadequate attention to practical and interpersonal skills.
Modern legal education has largely rejected Langdell’s premises about law as a science, based on deductive principles organized in a logical system. Yet his approach is often said to “rule us from the grave.” A diluted case method and quasi-Socratic style still characterize many law school classrooms. The reasons have much to do with the adaptability of this method for large classes, its corresponding low costs, and its perceived ability to sharpen analytic and verbal advocacy skills, as well as to accommodate different intellectual approaches.
However, the case approach is highly limited and somewhat of a misnomer. It does not require study of actual cases, although that, as legal realists noted, would be “little enough.” It directs attention only to the text of judicial opinions, a censored account that leaves out much of the “living process” of the law.56 What it often ignores is the translation of a dispute into a legal grievance; the investigation, negotiation, and presentation of parties’ claims; the unstated factors influencing judicial decisionmaking; the consequences of that decision on the individuals involved; alternative methods of resolving disputes; and the social, political, and economic backdrop of the process.
At its best, the Socratic method develops verbal and analytic skills, and promotes self-critical understanding of varied viewpoints.57 At its worst, in Ralph Nader’s phrase, this controlled dialogue offers students only freedom to “roam in an intellectual cage.”58 Students sometimes complain that faculty invite the student to “guess what I’m thinking,” and then find the response inevitably lacking; professors are “fishing for the ‘right’ answers and students [are] trying to catch the hook.”59 Critics also argue that Socratic questioning can diminish students’ self-confidence and encourage corrosive skepticism. They believe that the hierarchical and competitive classroom climate discourages participation 1003by many students, particularly women, and fails to supply enough opportunities for interactive learning, teamwork, and feedback.
In a classic critique of legal pedagogy, Harvard Law School professor Duncan Kennedy provided this description of the first-year law school experience:
The classroom is hierarchical with a vengeance, the teacher receiving a degree of deference and arousing fears that remind one of high school rather than college. The sense of autonomy one has in a lecture, with the rule that you must let teacher drone on without interruption balanced by the rule that teacher can’t do anything to you, is gone. In its place is a demand for a pseudo-participation in which you struggle desperately, in front of a large audience, to read a mind determined to elude you. . . .
The actual intellectual content of the law seems to consist of learning rules, what they are and why they have to be the way they are, while rooting for the occasional judge who seems willing to make them marginally more humane. The basic experience is of double surrender: to a passivizing classroom experience and to a passive attitude toward the content of the legal system.
The first step toward this sense of the irrelevance of liberal or left thinking is the opposition in the first year curriculum between the technical, boring, difficult, obscure legal case, and the occasional case with outrageous facts and a piggish judicial opinion endorsing or tolerating the outrage. The first kind of case—call it a cold case—is a challenge to interest, understanding, even to wakefulness. It can be on any subject, so long as it is of no political or moral or emotional significance. Just to understand what happened and what’s being said about it, you have to learn a lot of new terms, a little potted legal history, and lots of rules, none of which is carefully explained by the casebook or the teacher. It is difficult to figure out why the case is there in the first place, difficult to figure out whether one has grasped it, and difficult to anticipate what the teacher will ask and what one should respond.
The other kind of case usually involves a sympathetic plaintiff, say an Appalachian farm family, and an unsympathetic defendant, say a coal company. On first reading, it appears that the coal company has screwed the farm family, say by renting their land for strip mining, with a promise to restore it to its original condition once the coal has been extracted, and then reneging on the promise. And the case should include a judicial opinion that does something like awarding a meaningless couple of hundred dollars to the farm 1004family, rather than making the coal company do the restoration work.
The point of the class discussion will be that your initial reaction of outrage is naive, non-legal, irrelevant to what you’re supposed to be learning, and may be substantively wrong in the bargain. There are good reasons for the awful result, when you take a legal and logical view, as opposed to a knee-jerk passionate view, and if you can’t muster those reasons, maybe you aren’t cut out to be a lawyer.60
In contrast, Anthony Kronman (a philosopher as well as former dean of the Yale Law School) has defended the case method as an instrument for broadening the moral imagination of law students, enhancing their ability to understand a variety of conflicting “incommensurable values,” making lawyers more public-spirited, and cultivating an open-minded outlook.
Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession
113–14 (1993).
The case method of law teaching presents students with a series of concrete disputes and compels them to reenact these disputes by playing the roles of the original contestants or their lawyers. It thus forces them to see things from a range of different points of view and to entertain the claims associated with each, broadening their capacity for sympathy by taxing it in unexpected ways. But it also works in the opposite direction. For the student who has been assigned a partisan position and required to defend it is likely to be asked a moment later for his views regarding the wisdom of the judge’s decision in the case. To answer, he must disengage himself from the sympathetic attachments he may have formed as a committed, if imaginary, participant and reexamine the case from a disinterested judicial point of view. The case method thus works simultaneously to strengthen both the student’s powers of sympathetic understanding and his ability to suppress all sympathies in favor of a judge’s scrupulous neutrality. Most important, it increases his tolerance for the disorientation that movement back and forth between these different attitudes occasions. In this way the case method serves as a forcing ground for the moral imagination by cultivating that peculiar bifocality that [is] its most essential property.
One aim of this complex exercise in advocacy and detachment is the cultivation of those perceptual habits that lawyers need in practice. Forcing students to defend positions they do not believe in or that they consider morally offensive may seem arbitrary and insensitive, but it 1005serves an important goal. The student who is put in this position must strain to see the claim he has been given to defend in its most attractive light. He must work to discover its strengths and to articulate them, and this he cannot do unless he temporarily puts his earlier convictions to one side. In this way students get used to looking with a friendly eye even at those positions they personally reject, and before long they acquire some skill at identifying the strengths and weaknesses of whatever claim is presented to them, those that are unfamiliar or morally distasteful as well as those they recognize and endorse. Gradually, much of this becomes habitual. . . . [I]n time it increases a person’s powers of empathic understanding and relaxes the boundaries that initially restrict his sympathies to what he knows and likes.
1.Does Kronman accurately describe the intellectual and personal changes that the case method encourages?
2.Kronman believes that legal education makes law students more conservative in their outlook. It is important to realize that Kronman does not mean that law school promotes right-wing views. “Conservative” in his sense means “resistant to sweeping social change,” in a right-wing as well as left-wing direction. Critics such as Duncan Kennedy criticize this conservatizing tendency of legal education, whereas Kronman praises it.61 How would you assess it?
3.In defending the traditional Socratic method, which he likens to a “contact sport,” Georgetown Law Professor Louis Michael Seidman argues that it can instill a “seriousness that doesn’t exist now.” He explains:
The kind of teaching that I think has become quite prevalent—and frankly it drives me up a wall—is this: The professor asks a question, student A says “blah, blah, blah” and the professor says “that’s a really good point.” Student B raises her hand and says “yeah but blah, blah, blah.” The professor says “That’s a really good point also. Boy do we have smart students here.” Student C: “blah, blah, blah.” “Wow, I hadn’t thought of that, that’s a great point.” So the net result of that is people are reinforced in the ideas they already have. There is much less effort to challenge them.62
Do you think this is a fair characterization of contemporary law school teaching?
Experiential Learning
Law is the only profession that sends its students into practice without intensive clinical experience, and many educators believe that they suffer as a consequence. Erwin Chemerinsky, Dean of the U.C. Berkeley Law School, argues that: “There is no way to learn to be a 1006 lawyer except by doing it. . . . [I]t is unthinkable that medical schools could graduate doctors who had never seen patients or that they would declare that they just wanted to teach students to think like doctors.” 63 In a study by the National Association of Law Placement, associates in private firms rated clinical courses as the most helpful experience in making the transition to practice. 64 Students who lack such courses are also missing opportunities to develop cross-cultural competence and an understanding of how law functions, or fails to function, for the have-nots. Schools are similarly weak in non-clinical courses that integrate experiential approaches and address practice-oriented topics, such as problem solving, marketing, project management, interpersonal dynamics, and information technology. Consider that issue in light of the following excerpt from the 2007 Carnegie Report.
William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law
187–91 (Carnegie Foundation for the Advancement of Teaching 2007).
[T]he task of connecting [legal] conclusions with the rich complexity of actual situations that involve full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the [case] method. Issues such as the social needs or matters of justice involved in cases do get attention in some case-dialogue classrooms, but these issues are almost always treated as addenda. Being told repeatedly that such matters fall, as they do, outside the precise and orderly “legal landscape,” students often conclude that they are secondary to what really counts for success in law school—and in legal practice. In their all-consuming first year, students are told to set aside their desire for justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analyses. . . .
Another unforeseen consequence results from the near-exclusive focus on systematic abstraction from actual social contexts, which suggests two major limitations of legal education. One limitation is the casual attention that most law schools give to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, thus conveying the impression that lawyers are more like competitive scholars than 1007attorneys engaged with the problems of clients. Neither understanding of the law is exhaustive, of course, but law school’s typically unbalanced emphasis on the one perspective can create problems gratuitously for what [the American Bar Foundation’s study] After the JD calls “the transition to practice.”
The second limitation is law schools’ failure to complement the focus on skill in legal analysis with effective support for developing the ethical and social dimensions of the profession. Students need opportunities to learn about, reflect on, and practice the responsibilities of legal professionals. Despite progress in making legal ethics a part of the curriculum, law schools rarely pay consistent attention to the social and cultural contexts of legal institutions and the varied forms of legal practice. To engage the moral imagination of students as they move toward professional practice, seminaries and medical, business, and engineering schools employ well-elaborated case studies of professional work. Law schools, which pioneered the use of case teaching, only occasionally do so.
Both these drawbacks—lack of attention to practice and the weakness of concern with professional responsibility—are the unintended consequences of reliance on a single, heavily academic pedagogy to provide the crucial initiation into legal education. . . .
We endorse a different strategy, which we call integrative. . . . Something like an integrative strategy has, in fact, begun to emerge recently in discussions of legal education. The core insight behind the integrative strategy is that effective educational efforts must be understood in holistic rather than atomistic terms. For law schools, this means that, far from remaining uncontaminated by each other, each aspect of the legal apprenticeship—the cognitive, the practical, and the ethical-social—takes on part of its character from the kind of relationship it has with the others. . . .
1. A core element of the Carnegie Report’s “integrative” strategy is an increased emphasis on practical training. As studies after its release showed, only a tiny fraction of law schools required clinical training, and a majority of students graduated without it.65 Partly in response to the Carnegie Report, and to market pressure for more skilled lawyers, the ABA amended its accreditation standards to require that law schools mandate “one or more experiential course(s) totaling at least six credit hours,” which may include “a simulation course, a law clinic, or a field placement.”66 A positive outcome 1008of this change is that students now must graduate with some core competency in practical lawyering. However, rather than significantly modifying the curriculum, many schools have chosen to meet the standard by increasing opportunities for part-time externships and redesignating courses as “experiential” by including some simulated components.67 This has been driven by law schools’ quest to make students “practice ready” while at the same time cutting costs in response to the economics of law school discussed in Part A. Thus, some commentators who stress the pedagogical value of representing underserved clients in clinics as a way to promote skill development and deepen commitment to public service express concern that the move toward greater experiential training comes at the cost of adequate support for clinical education. In Seidman’s view, with the turn to experiential learning, clinics “are beginning to lose out. . . . We are just farming out students in large numbers to people who are practicing law.”68 What is your view?
2.How central a role do you believe that skills instruction should play in law school? The California Bar considered, but never implemented, an admission standard requiring applicants to the bar to complete fifteen units of experiential learning while in law school (significantly more than the ABA standard of six). Do you think this would a good policy? If so, how should additional skills training be financed? Would it make sense to require law school faculty to build practice and professionalism components into their standard curricular offerings? How would you respond to commentators who claim that, if clinical training was so valuable, employers would demand it for those they hire?
3.If skill-building is the goal, would it be equally or more cost-effective to shorten law school and to offer skills training through post-graduate courses or apprenticeship, along the lines of legal education in other nations?69
4.If law schools care about practical training, should they change the way they engage in faculty hiring and promotion? Many professors have very brief practice experience and a substantial number do not hold JDs.70 Many graduate from a small number of elite schools.71 Clinical faculty tend to lack the status and resources of their colleagues. Less than one-third of clinical teachers are on the same tenure track as non-clinical faculty and over 60 percent are on contracts or hold other forms of nonsecure positions.72 Can 1009law schools effectively produce practice-ready lawyers without modifying personnel structures?
5.What kinds of skills most need greater attention in law schools? After consultation with leaders of law firms, nonprofit organizations, government agencies, and in-house corporate counsel offices, Northwestern Law School identified certain core competencies that should be more central to legal education. These included teamwork, communication, quantitative analysis, strategic thinking, project management, and globalization.73 Other commentators have made similar suggestions for curricular reform and proposed topics such as organizational dynamics, marketing, and other “soft skills.”74 As noted above, more schools are moving in the direction suggested by these proposals and are including more training in practice-related skills.75 How would you evaluate your school’s efforts?
6.Are there other curricular areas apart from practice skills that you believe deserve more attention? In response to critiques of the traditional focus on litigation and appellate case analysis, some schools have refocused the first year to cover legislation, regulation, problem solving, and comparative materials. Other schools have encouraged interdisciplinary approaches and sequenced learning in the second and third years.76 In an age of machine learning and artificial intelligence, still other schools have started to teach technological competence. What do you think about these initiatives? Do they go far enough? What about training students in “soft” skills, like collaboration, or teaching students to think seriously about what it means to be happy?77
Training for Public Service and Leadership
Beyond technical skill, law school is supposed to inculcate the spirit of professionalism, which includes commitment to ethical conduct in the service of clients as well as to public values in support of the rule of law and access to justice. A 2016 survey of 24,000 lawyers in all fifty states found that values (such as integrity and trustworthiness) were “far more important in brand new lawyers than legal skills.”78 What role should law schools play in promoting these values? One obvious way schools do so is through the required course in professional responsibility, but this is too limited an opportunity to fully explore the multifaceted dimensions 1010of professional socialization and it often is taught “to the test”—i.e., to help students pass the MPRE. Clinical education also gives students a chance to learn about the value of access to justice. This section spotlights other ways that law schools have tried to inculcate professional values: through supporting public interest and pro bono activities, and increasing curricular and extracurricular initiatives in leadership.
As Duncan Kennedy’s critique of the case method excerpted above underscores, one key challenge in promoting values of public service is the law school experience itself. The influence of the law school socialization process has been much debated. Most commentators, including the authors of the Carnegie Report, assume that legal education has a substantial effect in shaping student values, perceptions, and professional careers.79 A frequent observation is that students enter law school talking of justice and leave talking of jobs.
Commentators believe that this shift in perspective is attributable to several forces. One is high tuition and limited financial aid and loan forgiveness programs, which deter some students from seeking public interest employment.80 In response, those who wish to promote public service argue that Loan Repayment Assistance Programs (LRAPs) and public interest scholarships can significantly expand graduates’ job opportunities. Supporting that claim, in one large-scale study, half of the responding attorneys with public interest jobs reported that the availability of loan forgiveness was very important in their choice.81 Some, but not all research suggests that scholarships and fellowships are even more effective in encouraging public interest placements.82
Other commentators attribute the shift in perspective from justice to jobs to a curriculum that discourages a focus on public interest engagement. Most research finds that issues of social justice receive relatively little attention in the core curricula.83 However, other studies suggest that law school does not have a large or negative effect on attitudes toward public interest law, and that the more significant influence on career commitments comes from market forces, such as the 1011comparatively low salary and prestige associated with much of the public interest work available.84
In response to the problem of what researchers have called public interest “drift”—the decline in desire to pursue careers representing underserved clients or causes85—law schools have taken different paths. Some have opted to institute public interest specializations providing tailored coursework, programming, and career services. In 2015, Equal Justice Works listed over forty law schools offering a public interest certificate program. The UCLA Law School launched one of the first in 1997.86 The program was created to respond to public interest drift by providing an institutional counterweight to law school socialization. The program continues to admit twenty-five students to UCLA each year, emphasizing past public service as a predictor of future public interest practice. The courses are limited to program students to promote a sense of community and counteract feelings of isolation and alienation.
Beyond specialized training, law schools have also sought to increase student pro bono participation. In 1996, the ABA amended its accreditation standards to call on schools to “encourage students to participate in pro bono activities and to provide opportunities for them to do so.”87 An interpretation of those standards provides that “pro bono opportunities should at a minimum involve the rendering of meaningful law-related services to persons of limited means or to organizations that serve such persons; however, volunteer programs that involve meaningful services that are not law-related may be included within the law school’s overall program.”88
Although a growing number of schools have made efforts to increase pro bono involvement, substantial challenges remain. Approximately forty schools require service by students, and fewer impose specific requirements on faculty. Even at these schools, the amounts demanded are sometimes quite minimal: Half of those responding to an ABA survey required students to contribute only ten to twenty hours.89 Moreover, the quality of some programs is open to question. Many students lack onsite supervision or a classroom opportunity to discuss their work or pro bono issues generally, and see relatively little faculty support for such efforts.90 In the nation’s first comprehensive report on pro bono programs 1012in legal education, an AALS Commission offered a diagnosis that remains apt: “law schools should do more.”91
The inadequacy of support for public service is a missed opportunity for both the profession and the public. As the materials on pro bono in Chapter 14, Section C.4 note, such work offers participants a wide range of practical benefits, such as training, trial experience, problem-solving skills, and professional contacts. For many, this experience also provides their most direct exposure to what passes for justice for poor people and to the need for legal reforms. In addition to these educational and practical benefits, a positive public service experience in law school may help inspire future involvement.92
For these reasons, the AALS Commission recommended that schools seek to make at least one well-supervised law-related pro bono opportunity available to every student and either require student participation or find ways to attract the great majority of students to volunteer.93 Some commentators have also recommended that law schools impose pro bono requirements on faculty. If an important goal of legal education is to inspire a commitment to public service, then having faculty serve as role models makes obvious sense.94
Another curricular gap involves preparation for leadership. Although no occupation produces such a large proportion of leaders as law, and leadership development is now a $50 billion industry, legal education has lagged behind. 95 Many law schools’ mission statements include fostering leadership, but few of these schools actually offer a leadership course. There is, however, increased attention to advancing the “leadership imperative.” The AALS now has a section on leadership with over 150 members and growing numbers of schools offer courses and programs, and are incorporating leadership into their school’s learning objectives. 96 Of course, significant challenges remain—not the least of which is the reluctance of some students to advertise their interest in becoming leaders. But increasing resources are available to develop the field, including a growing library of teaching materials and renewed 1013 attention to the need for effective leaders who can support core professional values of equity, diversity, and social justice. 97 In addition, educators are bringing a much-needed focus to the costs of leadership, including stress, overwork, and the underrepresentation of women and people of color. 98
1.What accounts for the inadequacies in many law schools’ approach to public service? Would it help if U.S. News and World Report or some other organization ranked pro bono programs by the number of placements provided or hours contributed per student?99 What other strategies might be most effective in producing reform?
2.Should law schools do more to support public service? If so, what strategies seem most promising? In his study of public interest drift, John Bliss finds that “drifting” students are more likely to have ambivalent feelings about their careers coming into law school and express more concern about the risks of taking an unconventional public interest path, which makes them more likely to follow the crowd into the law firm hiring process at the beginning of the 2L year.100 As he notes, students who are reluctant to “close any doors,” tend to “upload their resumes” and choose law firm jobs rather than public interest experiences during the summer.101 To reduce pressure and expand student choices, Bliss suggests changes such as pushing back the law firm recruiting process to spring of the 2L year to give students more time to consider options, and providing more opportunities for skills and professional formation in the 1L year. Such reforms could “lend understanding and unity across the corporate/public-interest student divide, mitigating competing accounts of deviance among first-year students.”102 Would you support such changes? Do you think they would matter in shaping student career choice?
3.How would you assess your law school’s public interest and pro bono opportunities? What, if any, changes would you recommend?
4.How much effect do you believe that law school debt has on students’ career choices? In 2007, a federal loan assistance program, the College Cost Reduction and Access Act, was enacted. The program provides debt relief to graduates of any law school who take qualifying jobs—and forgives the loans of those who commit at least ten years to public interest legal work.103 According to Professor Philip G. Schrag, one of the drafters, the program was designed to “enable student borrowers to choose their careers without being 1014unduly influenced by their debt burdens and [to] enable governments and nonprofit organizations to retain talented professionals who would otherwise be forced to resign after two or three years and seek higher-paying jobs so that they could repay their student loans.”104 Despite its promise, the program’s implementation by the Department of Education has drawn tremendous criticism as it was reported that an astonishing 99 percent of applicants for loan forgiveness have been rejected, nearly one-quarter for technical application problems.105 This low forgiveness rate appears hard to justify given that Congress expanded the program in response to outrage over previous high rejection rates.106 Many schools have school-specific LRAP programs, but benefits vary. How much does the availability of loan assistance matter to you and your classmates in making career choices?107 How could support for loan forgiveness be expanded?
3.How Well Does Law School Work?
Assessing how well law school does in advancing its multifaceted mission depends on which outcomes we focus on, the time frame for evaluation, and from whose vantage point “success” is measured. As the earlier discussion of rankings and accreditation suggested, there is already ample measurement of certain kinds of short-term outcomes—bar passage and job placement—at the expense of focusing on longer-term career satisfaction and broader contributions to society. Although some schools have sought to study these types of outcomes, Professor Paul Campos suggests that, overall, schools may choose to remain willfully blind: “Law schools are very good at tracking down the whereabouts of their graduates for the purpose of soliciting donations from them. We have very little formal data about what our graduates are doing because we have chosen not to gather that data—perhaps, in part, because on some level we would prefer not to know.” 108
As the ABA’s move toward learning outcomes highlights, law schools are being asked to think more proactively about measuring the impact of what professors are doing in the classroom; the new metrics focus on whether students are attaining competency in core skills, not just passing final exams. 109 In this regard, there has been a salutary shift to 1015 what Neil Hamilton has called “competency-based” learning, which prioritizes ongoing feedback and assessment based on performing practice-related tasks at “a mastery level of achievement.” 110 As part of this shift in assessment, many schools have also devoted more resources to providing academic support for at-risk students to ensure that they are leveled-up, not left behind. 111
Yet if one thinks of outcomes in terms of promoting student—and eventual lawyer—well-being, much work remains to be done. Recent studies indicate relatively high levels of student substance abuse and mental health challenges during school. 112 Experts suggest that administrators should devote more resources to identify students who might need extra support, and do more to provide and publicize resources. 113 As the ABA National Task Force on Lawyer Well-Being reports, because law students as well as practitioners have an “elevated risk” of stress, anxiety, depression, and substance abuse, the profession needs a more holistic approach to well-being; attention should focus on multiple dimensions of a lawyer’s life, including emotional, social, intellectual, physical, and spiritual concerns. 114 Urging the profession to “acknowledge the problems and take responsibility,” the Task Force recommends that law schools create best practices for detecting problems and assisting students in need, while providing training to faculty and incorporating well-being in Professional Responsibility courses. 115
1.When a 2018 Gallup-Purdue survey asked lawyers about the cost-effectiveness of their legal education, only 20 percent said that law school “prepared me well for life outside of graduate school” and only 23 percent said it was “worth the cost.”116 What should law schools do to address these troubling responses?
2.Do you feel well-prepared by your law school experience? What would you change? What does your law school do to promote well-being—what more could it do?
1016As Chapter 2 indicated, although the profession has become much more diverse over the past century, diversity remains a significant challenge. Commentators have suggested that the problem is driven, in part, by the legacy of discrimination and ongoing bias in the profession, as well as problems in the “pipeline” and pool of potential applicants. The discussion below addresses these challenges in the context of law school admissions and campus climate, with diversity broadly understood across multiple dimensions of race, class, immigrant background, gender, and sexuality.
Most law schools long discriminated on the basis of sex, race, ethnicity, and religion. Part of the impetus for tighter admission standards during the late nineteenth and early twentieth centuries reflected racial, ethnic, and religious biases among many educational administrators. For example, Columbia Law School was urged to require that applicants have a college diploma or pass an examination including Latin as a way to “keep out the little scrubs whom the school now promotes from grocery counters.”117
Discrimination against immigrant and Jewish students continued throughout the early twentieth century, while racial barriers were even more enduring. Although the first black student graduated from law school in 1869 and some institutions serving black students formed graduate programs in law around the same period, few of these programs survived after the Reconstruction era. A series of lawsuits beginning in the 1930s forced the establishment of separate state law schools for black students, and eventually the integration of existing institutions.
The history of the Sweatt v. Painter litigation illustrates the extent of the obstacles confronting racial minorities. In 1940, the Texas legal profession included approximately 7570 white attorneys and 22 black attorneys. When a qualified black applicant sought admission at the University of Texas Law School, the state responded first by adding law classes at Prairie View University. Prairie View was an impoverished historically black institution that offered college credit for mattress and broom-making, and lacked chairs and desks in two of the three law classrooms. Yet, in the Sweatt litigation, the state court concluded that the Prairie View facility was “substantially equal” to the University of Texas Law School.118
1017The Supreme Court held in Sweatt, 339 U.S. 629 (1950), that Texas’s racially segregated law schools were unconstitutional. The AALS then passed a resolution designed to encourage, but not to require, member schools to abolish racially discriminatory practices. Not until 1964 did all schools do so. Even after law schools removed formal prohibitions against non-white applicants, the absence of financial aid and the lack of affirmative action, active recruitment, and supportive academic environments all worked against minority students’ inclusion.119 Until the 1960s, lawyers of color represented fewer than 2 percent of the profession. For women of color, the barriers were especially great; only a tiny number of minority women managed to obtain legal training before the 1960s.120
Overt discrimination declined over the next several decades. In the 1960s, diversity increased significantly, partly in response to the civil rights movement. During the late 1960s, a series of meetings under the auspices of the Office of Economic Opportunity led to the formation of a national Council on Legal Education Opportunity (CLEO) for minorities, with representatives from the ABA, AALS, and LSAC (Law School Admission Council). This group’s efforts, coupled with other social and governmental pressures, led to increased financial aid, recruitment, and prelaw training. Support and protest activities by Black, Asian, and Latinx law student organizations accelerated this progress. According to the most recent comprehensive data available, while minorities account for about 40 percent of the nation’s population, they constitute 39 percent of law school students, 12–14 percent of tenured professors, and at least 17 percent of law school deans.121
Women’s entry into law school has been challenging in distinctive ways. For most of this nation’s history, “both formal policies and informal norms assumed that law was unfit for women and women unfit for law.”122 “No woman,” declared one nineteenth-century Columbia trustee, “shall degrade herself by practicing law especially if I can save her.”123 Such attitudes built on broader cultural assumptions about gender roles. A recurrent anxiety was that women’s exposure to masculine education and pursuits would result in infertility, frigidity, and “race suicide.” 1018Theories about the deadly “brain-womb” conflict warned that women who diverted their scarce energies to cognitive rather than reproductive pursuits risked permanent physical and psychological damage. The lower birth rate among female professionals appeared as both a cause and consequence of deep neuroses. Career women who remained single were viewed as morbid, sex-starved spinsters, while those who married were accused of neglecting their children’s needs and irreparably injuring their husbands’ self-respect and social status.124
Other rationales for women’s exclusion were more pragmatic. Some professors and administrators worried about distractions for male students in the classroom and opportunities for unchaperoned exchanges in the library. So too, many faculties did not want to squander scarce places on female students who would presumably not have the same opportunities as male competitors to make full use of their legal training. Societal discrimination against women thus became a rationale for perpetuating it.125
Such attitudes discouraged women from applying to law school and legitimated discrimination against their admission. Throughout the first half of the twentieth century, female students never constituted more than 3 percent of law school classes except during World War II. Not until 1972 did all ABA-accredited schools remove bans on women students. Moreover, even where formal admission policies were gender-neutral, educational experiences were not. Until women began entering law schools in substantial numbers during the 1970s, a common practice was to ignore their classroom presence as much as possible except for special issues or ceremonial occasions. For example, some professors observed Ladies Days, on which they called only on women students for selected cases or hypotheticals involving “women’s concerns.” Rape and needlework were favored topics.126 Sol Linowitz, a prominent Washington practitioner, recalled that “[t]here were only two women in my class at Cornell Law School, and to tell the truth we felt somewhat uncomfortable when they were around. It never occurred to us to wonder whether they felt uncomfortable.”127
Progress on issues of gender has been more dramatic than on issues of race and ethnicity. The percentage of female law students grew from 3 percent in 1960 to almost half by the turn of the 21st century. Nevertheless, the picture is not as positive from an intersectional perspective, with minority women in general, and Black women and Latinas in particular, still underrepresented. Moreover, as the discussion 1019below suggests, although female students have achieved numerical parity, their experiences and opportunities often continue to diverge from those of their male classmates.
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Current ABA accreditation standards require law schools to demonstrate “by concrete action” a commitment to having a “law school body that is diverse with respect to gender, race, and ethnicity.”128 The most common and widely accepted strategies involve proactive recruitment and retention programs, adequate financial aid, and educational support services. A more controversial issue involves affirmative action programs that result in acceptance of targeted minority students with lower average LSATs and GPAs than white applicants.
In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court held that educational institutions may consider an applicant’s ethnicity and race in order to achieve diversity as long as they do not employ rigid quotas. Subsequent challenges to law school admission processes have involved the exclusion of white applicants with GPAs and test scores higher than those of racial and ethnic minorities who succeeded in gaining admission. Plaintiffs in these cases have argued that such admission systems function as de facto quotas. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) and Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc), lower federal courts agreed.
However, in Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court held that the University of Michigan Law School’s consideration of applicants’ race did not violate the Equal Protection Clause. Yet, at the time of Grutter, the Court also decided a companion case, Gratz v. Bollinger, 539 U.S. 244 (2003), which struck down the University of Michigan’s undergraduate admissions program because it awarded a substantial and fixed number of points toward admission to members of targeted racial and ethnic minority groups. The cases were distinguished, in part, because the law school’s program neither established a fixed quota for minority admissions, nor restricted diversity considerations to those of race and ethnicity. Rather, the school considered candidates’ whole file and sought to achieve a “critical mass” of students of color. The number of African American, Latino, and Native American students in each class varied between 14 and 20 percent during a previous seven-year period, “a range inconsistent with a quota.” Grutter, 539 U.S at 330.
The Michigan cases attracted a record number of amicus briefs. Support for the law school’s program came from virtually all higher education associations, including the AALS, and a wide range of business organizations, as well as a group of highly distinguished retired military 1020leaders. These defenders of affirmative action made several claims. First, they contended that institutions of higher education, including professional schools, have a compelling state interest in taking racial and ethnic diversity into account in the admission process. In supporters’ view, it is essential to educate lawyers who will adequately reflect the diverse make-up of the population they will serve. Writing for the majority in Grutter, Justice O’Connor agreed:
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.
Id. at 326. In addition, the Court was also apparently swayed by research finding that a student body with varied backgrounds and perspectives enriches all participants’ learning environment. Here, amicus briefs cited studies showing that students who experience racial diversity in education display less prejudice, are better equipped to defuse conflicts, demonstrate sharper cognitive skills, exhibit a clearer understanding of multiple perspectives, and report greater satisfaction with their academic experience.129
Proponents also argued, and the Court agreed, that law schools were justified in taking into account factors other than quantitative metrics such as test scores and GPAs. Although formulas based on these quantitative measures help predict first-year law school performance, such formulas account for only 16 to 36 percent of the variance in law school grades, and grades measure only some of the skills necessary for effective legal practice.130 The most systematic attempt to follow students after graduation has not found a significant correlation between law school grades and later achievements. Most notably, a longitudinal survey by Michigan Law School found that LSATs and GPAs did not correlate with graduates’ earned income, career satisfaction, or contributions to the community. Minorities admitted under affirmative action criteria did as well on these measures as other graduates.131
1021For their part, opponents of affirmative action do not necessarily discount the value of diversity—but they worry that differential hiring and promotion criteria based on race will reinforce stereotypes of inferiority that the legal profession should be seeking to challenge. In his recent memoir, Justice Clarence Thomas attributed his inability to get the law firm jobs he wanted as evidence of what a “law degree from Yale was worth when it bore the taint of racial preference.”132 Many opponents also believe that affirmative action violates a moral principle of color-blindness. As Justice Thomas put it in his dissent in Grutter,
The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. . . . Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination.
539 U.S. at 346, 363 (Thomas, J., dissenting).
Critics of preferential treatment further argue that it masks rather than addresses the core problem, which is inadequate preparation for law school. According to Clint Bolick, director of litigation at the Institute of Justice:
So long as we have a regime of racial preferences that problem is not going to be addressed head-on. . . . When affirmative action is practiced that way it does not have any impact in expanding the pool of qualified applicants, which is what the goal should be. The way affirmative action is practiced today is cosmetic and superficial. It does not offer a systemic cure for serious social problems. It simply reshuffles the deck [among applicants].133
In Bolick’s view, current policies do not help those most disadvantaged by longstanding discrimination. Preferential treatment simply enables the most privileged nonwhite candidates to obtain better positions, and to attend better law schools than their credentials justify.
This view was in the background of the challenge to the University of Texas’s affirmative action program, which reached the Supreme Court in 2016. In Fisher v. University of Texas at Austin, 570 U.S. 297 (2013), 1022Abigail Fisher, a white student, claimed the University of Texas denied her admission based on her race. The Supreme Court had taken Abigail Fisher’s case once before. On that occasion, it ended up issuing a narrow opinion reaffirming that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government, but cautioned that public institutions must have good reasons for the methods they use to achieve that goal. Colleges and universities, Justice Kennedy wrote for the majority, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions. 570 U.S. at 312.
The first time around, the Supreme Court remanded the case to the Fifth Circuit for review of U.T.’s admission standard under its newly-enunciated test, and a divided panel of the Fifth Circuit affirmed that the Texas plan indeed passed muster. The Fifth Circuit stressed that Texas’s plan does not use race to the exclusion of other factors. Instead, as U.T.’s director of admissions explained, “race provides—like language, whether or not someone is the first in their family to attend college, and family responsibilities—important context in which to evaluate applicants, and is only one aspect of the diversity that the University seeks to attain.” 134 According to the Fifth Circuit, this limited use of race was justifiable: “We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience.” 135 On appeal, the Supreme Court agreed. 136 S. Ct. 2198 (2016) . The vote split 4 to 4, with Justice Kagan recused because she had worked on the case as Solicitor General. Under the rules of the Court, a tie had the effect of affirming the lower court decision. Writing for the Court, Kennedy affirmed that the U.T. plan promoted the university’s compelling interest in “diversity” by specifically focusing on challenging stereotypes, promoting “cross-racial understanding,” preparing students for “an increasingly diverse workforce and society,” and cultivating leaders with “legitimacy in the eyes of the citizenry.” Id . at 2211 . His opinion noted that the plan had a “meaningful, if still limited, effect on freshman class diversity,” and argued that race-neutral alternatives were not workable. Id . at 2212–15 .
The group that led that the Texas affirmative action challenge, Students for Fair Admissions, subsequently challenged the admission program of Harvard University. The organization represents Asian-American applicants, whose academic credentials are, on average, stronger than those of all other racial groups. Asian Americans would constitute 43 percent of the Harvard class if admission were based on SAT and GPA alone; instead they have comprised roughly 20 percent of Harvard’s admitted class over the past several years. Based on these statistics, the plaintiffs argue that Harvard has intentionally discriminated against Asian-American applicants by systematically 1023 downgrading them through the use of “personal ratings”—a score designed to capture qualities such as “leadership potential, “courage,” and “grit.” This formula, plaintiffs contend, allowed the university to upgrade the applications of African-American and Latinx students in an effort to balance the racial makeup of the class. 136 As commentators have noted, the case is not just about fairness for Asian Americans; it is also designed to reverse Bakke by taking aim at the heart of the diversity rationale. 137 Thus far, that aim has missed the mark. In October 2019, a district court judge, although noting that Harvard’s admissions program is “not perfect,” nonetheless rejected the plaintiffs’ claims. The court asserted that it was unwilling to “dismantle a very fine admissions program that passes constitutional muster solely because it could do better.” 138 As this book went to press, the case was on appeal.
1.Should criteria apart from GPAs and test scores assume more weight in law school admissions? Do U.S. News rankings foster overreliance on these quantitative criteria?139 Note that some schools (33 as of 2018) have begun accepting tests other than the LSAT, particularly the Graduate Record Examinations (or GRE). Administrators at these schools argue that the GRE is better suited to assess the potential of students from diverse backgrounds because it tests knowledge acquired in college as opposed to abstract skills (like logic games). Using the GRE also offers students flexibility, since it is necessary for admission to other graduate programs. And it helps law schools achieve diversity goals because scores do not count toward U.S. News rankings. Beyond the test, how much relevance should school admission officers attach to nonquantitative criteria, such as socioeconomic background, leadership ability, community service, employment experiences, and perseverance in the face of hardship? Especially in light of the claims in the Harvard case, do you think greater reliance on such factors leave too much room for idiosyncratic or biased judgments? Or are such criteria an imperfect but essential way to holistically assess candidates in order to achieve a diverse student body?
10242.Public opinion polls consistently find that most Americans oppose affirmative action and most disagreed with the Court’s holding in Grutter.140 How relevant should this opposition be to courts or law schools?
3.Is the distinction that the Grutter Court drew between the permissible law school approach and the impermissible undergraduate formula convincing? In their Grutter dissents, both Justice Kennedy and Justice Rehnquist emphasized the small deviation from year to year in the percentages of admitted minority students during most of the period under review and the fact that administrators actively monitored the number of minorities throughout the admission process. When does the pursuit of a critical mass of minority students become a quota?
4.Is “diversity” the best rationale for racial and ethnic preferences? Consider the views of one self-described “tepid” supporter of affirmative action, a black Time editor, Perry Bacon. He objects to placing a burden on students or workers to contribute a “uniquely black viewpoint.”
But the fact is, a Michigan Law School student would learn a lot more about the “unique experience” of blacks in America if he spent a day at an inner-city school in Detroit than he would in a torts class with me. In fact, a white person who grew up poor has an equally or perhaps more diverse perspective, and yet my blackness counts so much more in affirmative action. . . . Let’s stop using this notion of diversity to sidestep the real issue. Colleges don’t want more minority students so we can all hold hands and sing It’s a Small World. Why can’t we just say what the real goal is: the creation of a multiethnic élite? I think young minorities can help form that élite. But I want to join that élite and be expected to deliver the “unique experience” of my whole life rather than an assumed experience based solely on the color of my skin.141
On the other hand, in the face of the Harvard lawsuit, should the diversity rationale be defended as the last justification left for upholding affirmative action in the face of legal challenges? Note that since Bakke, the percentage of selective colleges with affirmative action programs has declined by roughly half, from 60 to 35 percent.142
5.Justice O’Connor’s Grutter opinion indicated that race-conscious programs “must have a logical end point.” 539 U.S. at 339. Her decision went on to note:
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context 1025of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Id. Justice Ginsburg, joined by Justice Breyer, wrote separately to suggest that “[f]rom today’s vantage point, one may hope but not formally forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.” Id. at 341. What is your view? By what criteria should law schools decide when to end affirmative action?
6.Despite the attention given to race-based affirmative action, there are other features of the admissions process that have as much, if not more, significance in affecting student body diversity. Based on the data that emerged from the Harvard lawsuit, one study showed that from 2009 to 2014, 43 percent of white applicants admitted to Harvard were athletes, legacies, or the children of donors and faculty.143 Other studies have shown that standardized test scores predict “family wealth more accurately than anything else, in large part because family wealth corresponds to test preparation, both in schools and in specialized test preparation tutoring.”144 In the law school admissions process, the use of “merit-based” financial aid to recruit high-LSAT applicants also can reinforce race and class privilege. Does this suggest that if schools want to take diversity seriously, it is as (and perhaps more) important to focus on dismantling structures favoring wealthy white applicants?
7.As the Harvard case and recent cheating scandals involving undergraduate admissions revealed, schools’ quest for financial donations can also tilt the balance in favor of wealthy students. The public was shocked not just by affluent parents who bribed college officials to admit their children, but also by parents who used perfectly legal donations to achieve the same results because there was no formal quid pro quo promise of admission.145 Although admissions coaches say that it is not as easy to buy your way into law school, they do point out that development potential can play a role in law school admissions and that wealthy parents can pay for other advantages such as test prep or learning disability testing that permits their children to gain extra time in sitting for the LSAT—an accommodation that is perfectly legitimate but sometimes abused.146
8.Do these advantages for the rich argue in favor of schools paying more attention to socioeconomic diversity? There is very little data on 1026socioeconomic diversity in law school and available figures on financial aid do not illuminate the issue because they generally combine “need-based” and “merit-based” aid into one amalgamated figure. One study on socioeconomic status (SES) in law school found that “only two percent of students come from American households with low SES (that is, SES in the bottom quartile),” while “well over half come from households with very high SES (SES in the top decile).”147 Partly in response to this problem, law schools have also focused more attention on recruiting first-generation students, many from immigrant backgrounds.
9.What alternatives to current affirmative action programs exist to promote diversity? Some believe that affirmative action is only necessary because LSAT scores and GPAs disproportionately disadvantage minority applicants. Supporting this view, a recent study by Berkeley professors Marjorie Shultz and Sheldon Zedeck found that tests measuring twenty-six lawyer “effectiveness factors” predict performance in the legal profession at least as well as the traditional quantitative admission criteria, without the racial differences that emerge with the LSAT. The factors, identified from hundreds of interviews with lawyers, law faculty, law students, judges and clients, fall into eight categories:
Included within those categories are everything from analysis and reasoning, to interviewing, passion, and engagement.148 Do Shultz and Zedeck’s competencies in practice suggest alternative admission criteria?
It comes as no surprise that, once admitted to law school, diverse students have diverse experiences. In general, students of color have higher dissatisfaction, disengagement, and attrition rates than their white classmates. Addressing diversity in law school requires confronting issues of campus culture and climate, and how they differentially affect students from different backgrounds. In this regard, consider the following description of the classroom experience from the perspective of students of color.
1027Kimberlé Williams Crenshaw, “Foreword: Toward a Race-Conscious Pedagogy in Legal Education”
National Black Law Journal, Winter 1989, at 1.
Race in the Law School Classroom
Minority students across the country have waged a series of protests to draw attention to problems of diversity in the nation’s law schools. Although the students’ bottom line demand is often for the recruitment of more minority faculty and students, the anger and frustration apparent in these protests indicate that the disappointment is not simply over the lack of “color” in the hallways. The dissatisfaction goes much deeper—to the substantive dynamics of the classroom and their particular impact on minority students. In many instances, minority students’ values, beliefs, and experiences clash not only with those of their classmates but also with those of their professors. Yet because of the dominant view in academe that legal analysis can be taught without directly addressing conflicts of individual values, experiences, and world views, these conflicts seldom, if ever, reach the surface of the classroom discussion. Dominant beliefs in the objectivity of legal discourse serve to suppress the conflict by discounting the relevance of any particular perspective in legal analysis and by positing an analytical stance that has no specific cultural, political, or class characteristics. I call this dominant mode “perspectivelessness.”
This norm of perspectivelessness is problematic in general, and particularly burdensome on minority students. While it seems relatively straightforward that objects, issues, and other phenomena are interpreted from the vantage point of the observer, many law classes are conducted as though it is possible to create, weigh, and evaluate rules and arguments in ways that neither reflect nor privilege any particular perspective or world view. Thus, law school discourse proceeds with the expectation that students will learn to perform the standard mode of legal reasoning and embrace its presumption of perspectivelessness. When this expectation is combined with the fact that what is understood as objective or neutral is often the embodiment of a white middle-class world view, minority students are placed in a difficult situation. To assume the air of perspectivelessness that is expected in the classroom, minority students must participate in the discussion as though they were not African-American or Latino, but colorless legal analysts. The consequence of adopting this colorless mode is that when the discussion involves racial minorities, minority students are expected to stand apart from their history, their identity, and sometimes their own immediate circumstances and discuss issues without making reference to the reality that the “they” or “them” being discussed is from their perspective “we” or “us.” Conversely, on the few occasions when minority students are invited to incorporate their racial identity and experiences into their comments, they often feel as though they have been put on the spot. 1028Moreover, their comments are frequently disregarded by other students who believe that since race figures prominently in such comments, the minority students—unlike themselves—are expressing biased, self-interested, or subjective opinions. The result is that minority students can seldom ground their analysis in their own racial experiences without risking some kind of formal or informal sanction. Minority students escape the twin problems of objectification and subjectification in discussions when minority experiences are deemed to be completely irrelevant, or are obscured by the centering of the discussion elsewhere. The price of this sometimes welcomed invisibility, however, can be intense alienation. . . .
Instructors create the conditions that lead to the objectification of minority students by narrowly framing classroom discussions as simple exercises in rule application and by not giving students permission to step outside the doctrinal boundaries to comment on or critique the rules.
In each of these cases minority students confront difficult choices. To play the game right, they have to assume a stance that denies their own identity and requires them to adopt an apparently objective stance as the given starting point of analysis. Should they step outside the doctrinal constraints, not only have they failed in their efforts to “think like a lawyer,” they have committed an even more stigmatizing faux pas: they have taken the discussion far afield by revealing their emotional preoccupation with their racial identity.
Given the infrequency with which most law teachers create the space for and legitimize responses that acknowledge the significance of a racially-informed perspective, it is not surprising that minority students often choose the role of “good student” rather than run the risk of appearing to be incapable of exercising the proper decorum and engagement in legal analysis. Such experiences teach minority students that in law school discourse, their cultural and experiential knowledge is not important or relevant. Indeed, they learn that any failure to observe the constructed dichotomy between the rational—read non-racial and non-personal—and the emotional—read racial and experiential—may elicit derision or disregard. . . .
Many of these problems could be averted if professors framed discussions so that the boundaries of acceptable responses were not so narrowly constructed. This would give students permission to drop the air of perspectivelessness, to stand within their own identity, and to critique the doctrine or rule directly. Yet instructors often fail to broaden the parameters of the discussion, perhaps believing that to do so would legitimize the inclusion of racial perspectives where none had existed before. Some may assert that since white students do not feel the need to fall back on personal, racialized views of the world, neither should minorities. This belief, however, is predicated on an erroneous view that white students—and indeed the instructors themselves—are not also 1029reflecting racialized views when they frame and discuss issues. They accept the absence of an explicitly racial referent as evidence that the doctrinal or substantive framework being discussed is objective and race-neutral. However, majority as well as minority students view the world through a consciousness constructed in part through race. The appearance of perspectivelessness is simply the illusion by which the dominant perspective is made to appear neutral, ordinary, and beyond question. As a result, while the perspectives of minority students are often identified as racial, the perspectives of their majority classmates are not. . . .
An equally stressful, but conceptually more obscure experience is what I call subjectification. This is experienced by minority students when, after learning to leave their race at the door, their racial identities are unexpectedly dragged into the classroom by their instructor to illustrate a point or to provide the basis for a command performance of “show and tell.” The eyes of the class are suddenly fixed upon the minority student who is then expected to offer some sort of minority “testimony”. . . . Usually, the effort to elicit the minority perspective is a cue that the discussion is a policy—as opposed to a doctrinal—discussion. The racial conflict, if any, is seen as occurring outside of the classroom while the objective of the discussion is apparently to determine how best to address the problem. To the extent that the minority student can participate in this debate, she is viewed as a biased or specially interested party and thus, her perspectives are probably regarded as being too subjective to have a significant bearing on the ultimate solution. . . .
Some of these dilemmas can be addressed by altering the way racial issues are framed, by presenting racism as a serious societal problem, and by explicitly deprivileging dominant perspectives. Instructors wishing to explore racial issues without contributing to the anxiety of minority students should resist framing minority experiences in ways that make such experiences appear to be disconnected to broader issues and that can be easily forgotten as soon as the policy discussion is over. Instead, the frame should be shifted so as to illuminate the connection between racial subordination and the values and interests that appear to be race-neutral or that are simply taken for granted. This would provide space for minority students to contribute to discussions in ways that value their perspectives and do not put them on the spot.
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From a gender perspective, despite the rapid numerical growth of female law students and the demise of overtly discriminatory practices, women often feel that subtle barriers to equality remain. Traditionally, male students have talked more in class, received higher grades, and received more opportunities for law review positions, mentoring, and 1030clerkships.149 Female law students have also reported higher levels of dissatisfaction, disengagement, and self-doubt than their male classmates.150 Recent research is lacking, but some data suggest that progress has occurred on certain issues.151
The limited empirical research indicates that ideological factors may be more important than gender in explaining women’s overall experience of legal education. In one old study, women who entered law school primarily for reasons such as status, income, and job security were generally satisfied with their training, while women who entered with predominantly social justice motivations found the institution sexist and dehumanizing.152 These different accounts highlight a longstanding paradox. By definition, the women’s movement claims to speak from the experience of women. Yet that experience counsels attention to its own diversity, and to the role of contextual variation and multiple identities in mediating gender differences.
1.What steps could law schools take to improve climate and retention rates for students of color? Studies have found that minority students generally participate less in class and have lower comfort and satisfaction rates, as compared to their white classmates, except when the class is taught by a professor of color or the students are enrolled in a historically black law school.153 Many Asian-American students, who are often inappropriately lumped into a single group, or considered “white” for certain diversity 1031purposes, have also experienced bias, marginalization, and silencing in law school settings.154 More recent data show that faculty of color remain significantly underrepresented in legal academia, at roughly 15 percent overall.155 Bias based on race, ethnicity, and sexual orientation remains a significant problem especially at leadership levels in law school.156 Research also shows that the bias that law students and faculty experience continues to impair the learning environment.157 What are the implications of such findings for educational reform efforts?
2.In commenting on the lower class participation rates of women at Harvard Law School, an editorial in the student newspaper faulted women for “consciously choosing to let their male peers do most the talking” and asserted that female students had a “duty” to speak up. 158 Another commentator, in response to feminists’ arguments that the aggressive, competitive atmosphere of law school classrooms silences women, claims that such assertions revive nineteenth-century stereotypes about women’s inability to engage in the “hot strifes of the bar.” 159 What is your view?
3.Is there a “woman problem” at your institution? If so, what might be the most promising ways of addressing it? Some suggest that schools should have a structure for addressing concerns and monitoring progress on gender and diversity-related issues. Do you agree? Does your school have such a structure?
4.One of the most significant changes to law schools impacting diversity over the recent past has been the growth of the foreign student population, largely through the expansion of LL.M. programs. 160 By the early 2000s, there were over 100 law schools (nearly half in the top-tier) with LL.M programs and nearly 60 offering other programs exclusively for foreign lawyers. In 2004, there were 3200 foreign students enrolled in post-JD programs, a 50 percent increase from 1998 (and roughly 1/10 of total U.S. JD enrollment). 161 The absence of ABA regulation of LL.M. programs, coupled with law school ability to take foreign student tuition dollars (to bridge 1032 deficits) without counting these students for ranking purposes, led to significant growth that skyrocketed after the Great Recession. As a result, the law school experience of both students and faculty has become more international than at any time, although there is little information on how LL.M students experience law school or affect classroom dynamics. What might law schools do to identify and respond to challenges that these students confront in navigating American law school culture?
How should law schools address diversity issues in the context of supporting student organizations? This issue came to the fore in the case Christian Legal Society v. Martinez, 561 U.S. 661 (2010). The case involved Hastings College of Law, a school within the University of California system. Hastings extends official recognition of student groups through its “Registered Student Organization” (RSO) program. Though, of course, students can meet together even if they don’t organize into an RSO, several benefits attend this school-approved status, including the use of school funds, facilities, and channels of communication, as well as Hastings’s name and logo. In exchange for recognition, RSOs must abide by certain conditions. In particular, all RSOs must comply with the school’s Nondiscrimination Policy, which tracks state law barring discrimination on a number of bases, including religion and sexual orientation. Specifically, the policy states:
[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, [Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by this policy of nondiscrimination. [Hasting’s] policy on nondiscrimination is to comply fully with applicable law.
[Hastings] shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.
561 U.S. at 670. Hastings interpreted this policy to mandate that RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of his or her status or beliefs.
At the beginning of the 2004–2005 academic year, however, the leaders of an existing Christian RSO formed the Christian Legal Society (CLS) by affiliating with a national Christian association that charters student chapters at law schools throughout the United States. These chapters must adopt bylaws that, among other things, require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with the Statement’s principles. Chapters must exclude from 1033affiliation anyone who engages in “unrepentant homosexual conduct” or holds religious convictions different from those in the Statement of Faith.
On September 17, 2004, CLS submitted to Hastings an application for RSO status. Several days later, Hastings rejected the application on the grounds that CLS’s bylaws did not comply with the school’s Nondiscrimination Policy, as CLS barred students based on religion and sexual orientation. CLS subsequently sued under 42 U.S.C. § 1983, alleging that Hastings’s disapproval violated its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion.
In a five-to-four opinion, the Supreme Court disagreed. It held that the all-comers condition on RSO status was both reasonable and viewpoint neutral and therefore did not violate CLS’s right to free speech. In so doing, the Court reviewed, and credited, administrators’ justifications for their judgment:
First, the open-access policy “ensures that the leadership, educational, and social opportunities afforded by [RSOs] are available to all students.” Just as “Hastings does not allow its professors to host classes open only to those students with a certain status or belief,” so the Law School may decide, reasonably in our view, “that the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students.” RSOs, we count it significant, are eligible for financial assistance drawn from mandatory student-activity fees; the all-comers policy ensures that no Hastings student is forced to fund a group that would reject her as a member.
Second, the all-comers requirement helps Hastings police the written terms of its Nondiscrimination Policy without inquiring into an RSO’s motivation for membership restrictions. . . .
Third, the Law School reasonably adheres to the view that an all-comers policy, to the extent it brings together individuals with diverse backgrounds and beliefs, “encourages tolerance, cooperation, and learning among students.” . . .
Fourth, Hastings’ policy, which incorporates—in fact, subsumes—state-law proscriptions on discrimination, conveys the Law School’s decision “to decline to subsidize with public monies and benefits conduct of which the people of California disapprove.” . . .
In sum, the several justifications Hastings asserts in support of its all-comers requirement are surely reasonable in light of the RSO forum’s purposes.
1034Justice Alito dissented, joined by Justices Roberts, Scalia, and Thomas. The lengthy dissent began by proclaiming:
The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.
Id. at 706 (Alito, J., dissenting).
1.Was the case rightly decided or was it, as Justice Alito later claimed, a “serious setback for freedom of expression in this country?”
2.What do you make of Hastings’s Nondiscrimination Policy? Would you support or oppose an open-access policy for your law school?
3.According to a reported transcript of a recent event held at the Federalist Society, Justice Alito described the case this way:
Over the past ten years, something quite dramatic has happened. An inkling was provided in CLS v. Martinez, a 5–4 decision. Hastings Law School threw the Christian Legal Society off campus because of the society’s beliefs that members should hold traditional Christian beliefs on a variety of subjects, including on sexual relations, and only people of the opposite sex should be allowed to marry. The court allowed Hastings to get away with just that. It was an eye-opening decision. The claim of religious liberty could not stand up with an idea supported by influential segments of society.
Is that an accurate description of the Christian Legal Society v. Martinez, 561 U.S. 661 (2010) decision?162 Why or why not?
4.What role, if any, should law schools play in promoting diversity on law review? The majority of flagship law reviews employ some level of holistic review to choose part of their entering class each year and this has dramatically increased the number of student editors of color. The practice has also provoked legal challenge.163 A group called Faculty, Alumni and Students Opposed to Racial Preferences has sued law reviews at Harvard and NYU claiming that they discriminate against white applicants when selecting members and articles. In the suit against Harvard, the group claims that thirty members of the review are selected on “merit,” but another eighteen are then picked through a holistic but anonymous review. NYU 1035selects thirty-eight of its members by merit and twelve spots are reserved for selections made by the law review’s Diversity Committee, which reviews personal statements of no more than 500 words.164 What is your view of these policies?
What should be done to promote and sustain diversity in law school? Consider the following proposal by the ABA.
ABA Presidential Initiative Commission on Diversity, “Diversity in the Legal Profession: Next Steps”
15–19 (2010).
Law schools play a particularly important role in advancing the value of diversity in the legal profession. Law schools identify the faculty talent that educates and produces new scholarship and the student talent that continually renews the profession. Law schools also choose the knowledge, skills, and values that form the legal canon and create an identity for lawyers. . . . In short, law schools occupy a central role in forming and transforming the intellectual capital, the group identity, and culture of the profession. For this reason, law schools are crucial to the project of making the profession more diverse. . . .
As law schools enact a diversity agenda, they can strengthen the consensus about the value of diversity to the profession and the larger society using oral and written messages, but, most importantly, through educational and management practices, such as the appointment of a full time Chief Diversity officer, that reflect equity and inclusion. Specifically, law schools can change perceptions, challenge stereotypes, and reduce unconscious bias when they hire, promote, and tenure a broadly diverse faculty and staff to teach and mentor a broadly diverse student bodies. By creating a diverse learning environment, law schools can model how to create a work force with the skills that will be needed by a more international, pluralistic and mobile client base. . . . Listed below are some of the actions that can be taken by law schools to enhance their existing diversity programs.
RECOMMENDATIONS
Culture: Building Consensus/Creating Accountability
Diverse Faculty: Hiring and Retention
Educational Practices: Admissions, Law School Debt. . . .
Career Enhancement
How well does your school live up to these recommendations? What do you think it could do better?
1For a comprehensive history, see Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).
2Id. at 8. In 1860, only nine of thirty-nine states required any specific period of legal study. Id.
3Charles Warren, History of Harvard Law School 372–73 (1908) (quoting a student at the time, Samuel F. Batchelder). See generally Robert W. Gordon, The Geologic Strata of the Law School Curriculum, 60 Vand. L. Rev. 339 (2007).
4Lawrence M. Friedman, A History of American Law 607 (2d ed. 1985).
5Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 113 (1976); see also Richard L. Abel, American Lawyers 71–72 (1989).
6Thorstein Veblen, The Higher Learning in America 211 (1918).
7The AALS also has a membership review system with standards that are similar to the ABA’s but in some respects less specific or more demanding.
8See Jason Song, State Bar Urged to Require Unaccredited Law Schools to Disclose Graduation, Dropout Rates, L.A. Times, Aug. 9, 2015.
9Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession 188 (2000).
10Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (1992) [hereinafter MacCrate Report].
11William Twining, Pericles and the Plumber, 83 L. Q. Rev. 396 (1967).
12Dylan Matthews, Obama Thinks Law School Should Be Two Years, Wash. Post, Wonkblog Aug. 27, 2014.
13Paul Caron, Nine Law Schools Now Offer Two-Year J.D., TaxProf Blog (May 9, 2013), https://taxprof.typepad.com/taxprof_blog/2013/05/nine.html.
14See generally Elizabeth Olson, The 2-Year Law Education Fails to Take Off, N.Y. Times, Dec. 25, 2015.
15John A. Sebert, The Cost and Financing of Legal Education, 52 J. Legal Educ. 516, 524 (2002); Richard Matasar, The Rise and Fall of American Legal Education, 49 N.Y.L. Sch. L. Rev. 465, 472–73 (2004).
16GAO, Higher Education: Issues Related to Law School Cost and Access 22–29 (2009).
17David Segal, The Price To Play Its Way, N.Y. Times, Dec. 18, 2011, at B1, B4–B5.
18Ben H. Barton, Fixing Law Schools: From Collapse to the Trump Bump and Beyond 37 (2019).
19Brian Z. Tamanaha, How to Make Law School Affordable, N.Y. Times, May 31, 2012, at A27; see generally Brian Z. Tamanaha, Failing Law Schools (2012); William S. Howard, The Student Loan Crisis and the Race to Princeton Law School, 7 J.L. Econ. & Pol’y 485 (2011).
20Philip G. Schrag, Failing Law Schools—Brian Tamanaha’s Misguided Missile, 26 Geo. J. Legal Ethics 387 (2013).
21Barton, supra note 18, at 74.
22Id. at 88.
23Id. at 96–99, 111–13.
24Id. at 111, 143.
25Id. at 146.
26Id. at 155; see also Melissa Heelan Stanzione, Law School’s Accreditation Yanked, Attorneys Say ABA Justified, ABA/BNA Lawyers’ Manual on Prof’l Conduct (2018).
27Stephanie Francis Ward, Arizona Summit Sues ABA, 3rd For-Profit InfiLaw School to Do So, ABA J. (May 24, 2008).
28Daniel Rodriguez & Craig Boise, A Tightened Bar Passage Standard Is Needed, Nat’l L.J., Sept. 19, 2016, at 22.
29Research has shown that the availability of taxpayer-supported loans has contributed to schools’ increasing tuition because the federal government will pay for defaults. Steven J. Harper, Bankruptcy and Bad Behavior—The Real Moral Hazard: Law Schools Exploiting Market Dysfunction, 23 Am. Bankruptcy Inst. L. Rev. 347 (2015). This problem is particularly acute in for-profit schools. Paul Campos, The Law-School Scam, Atlantic, Sept. 2014.
30Standard 509 Consumer Information, Approved Aug. 2012, http:www.abanow.org/2012-06/2012am103/.
31Scott Norberg, J.D.s and Jobs: The Case for an ABA Accreditation Standard on Employment Outcomes, 67 J. Legal Educ. 1035 (2018).
32See Riaz Tejani, Law Mart: Justice, Access, and For-Profit Law Schools (2017).
33 Id.
34Am. Bar Ass’n Task Force on the Future of Legal Education, Report and Recommendations (2014).
35ABA Standard 315.
36Deborah L. Rhode, The Trouble with Lawyers 128 (2015).
37Rhode, supra note 9, at 137–41; Daniel B. Rodriguez & Samuel Estreicher, Make Law Schools Earn a Third Year, N.Y. Times, Jan. 17, 2013.
38Gillian Hadfield, Law Schools Are Letting Down Their Students and Society—Here Are Three Steps They Can Take to Fix Things, Quartz (Sept. 20, 2017), https://qz.com/1082266/law-schools-are-letting-down-their-students-and-society-here-are-three-steps-they-can-take-to-fix-things/.
39Rhode, supra note 9, at 123; William Henderson & Andrew Morriss, Rank Economics: Law Schools Have No One to Blame But Themselves for the Power of U.S. News Rankings, Am. Lawyer, June 2007, at 81–82.
40Wendy Nelson Espeland & Michael Saunder, Rankings and Reactivity: How Public Measures Recreate Social Worlds, 113 Am. J. Soc. 1, 13–14 (2007); Colin Diver, Is There Life After Ranking?, Atlantic, Nov. 2005, at 136–37; Leigh Jones, Ranking Time Brings Rain of Glossy Promos: Law Schools Send ‘Law Porn’ to Gain Edge in Rankings, 28 Nat’l L. J, Oct. 1, 2005, at 6.
41Rhode, supra note 9, at 123; Matasar, supra note 15, at 478.
42Malcolm Gladwell, The Order of Things, New Yorker, Feb. 14, 2011, at 68, 73.
43Linda Edwards, The Rankings Czar, ABA J., Apr. 2008, at 38, 41; Henderson & Morriss, supra note 39, at 81; Alex Wellen, The $8.78 Million Makeover, N.Y. Times, July 31, 2005, at 4A, 18–19.
44Karen Sloan, Changes to US News Law School Rankings Met with Skepticism, Law.com (Jan. 8, 2020), https://www.law.com/2020/01/08/changes-to-u-s-news-law-school-rankings-met-with-skepticism/.
45Espeland & Saunder, supra note 40. Nearly every dean interviewed in a recent study reported being inundated by materials they never looked at. As one put it, “I can’t imagine how bored I’d have to be to read one of those things. But we send them out because . . . we need to get our name out there.” Id.
46Diversity Debate, Nat’l L. J, Feb 21, 2011, at 3.
47Am. Bar Ass’n Presidential Initiative Comm’n on Diversity: Diversity in the Legal Profession: Next Steps (2010).
48Richard Abel, Engines of Anxiety: Academic Rankings, Reputation, and Accountability, 66 J. Legal Educ. 961, 977 (2017).
49Leigh Jones, Law Schools Unlikely to Boycott Magazine Rankings: Fallout From Liberal Arts Boycott Minimal—So Far, Nat’l L. J., June 25, 2007, at 22.
50Espeland & Sauder, supra note 40, at 191.
51See id.
52See, e.g., Sidney P. Simpson, Law School Objectives and Methods: Development in the Law School Curriculum and in Teaching Methods, 8 Am. L. Sch. Rev. 1038 (1938).
53William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 28 (2017).
54For a sampling of the criticisms, see, for example, Symposium: The Profession and the Academy: Addressing Major Changes in Law Practice, 70 Md. L. Rev. 307–524 (2011); Patrick G. Lee, Law Schools Get Practical, Wall St. J., July 11, 2011, at B5; Deborah L. Rhode, Legal Education: Professional Interests and Public Values, 34 Ind. L. Rev. 23 (2000).
55Lee, supra note 54, at B5; Robert J. Rhee, On Legal Education and Reform: One View Formed from Diverse Perspectives, 70 Md. L. Rev. 310, 324–27 (2011).
56Jerome Frank, Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907 (1933).
57Philip Areeda, The Socratic Method, 109 Harv. L. Rev. 917 (1996).
58Ralph Nader, Law Schools and Law Firms, New Republic, Oct. 11, 1969, at 20–21, 23.
59Susan Sturm & Lani Guinier, The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity, 60 Vand. L. Rev. 515, 532 (2007).
60Duncan Kennedy, Legal Education in the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 592–95 (1982).
61 Id.
62Mark V. Tushnet & Louis Michael Seidman, On Being Old Codgers: A Conversation about a Half Century in Legal Education 11 (2019), https://scholarship.law.georgetown.edu/facpub/2157.
63Erwin Chemerinsky, Forward: The Benefits of Knowledge, Law School Survey of Student Engagement 5 (2012).
64Nat’l Ass’n for Legal Career Professions, 2010 Survey of Law School Experiential Learning Opportunities and Benefits 26 (2011) (reporting that 63 percent of respondents found clinical courses very useful in preparing for legal practice, far more so than skills courses and pro bono).
65David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. Times, Nov. 19, 2011, at A1; Karen Tokarz et al., Legal Education at a Crossroads: Innovation, Integration, and Pluralism Required, 43 Wash. J. L. & Pol’y 11 (2013) (finding that only nineteen schools required a clinic or internship).
66ABA Standards & Rules of Procedure for Approval of Law Schools 2014–2015, Standard 303(a)(3).
67Robert R. Kuehn, If 6 Turned Out to Be 9, I Don’t Mind (But 3? Or 2!), 27 Clinical Legal Educ. Ass’n Newsletter (Winter 2018) (noting that some schools had “chosen to simply recast long-standing first-year course credits as a way to meet the new 6-credit requirement”).
68Tushnet & Seidman, supra note 62, at 6.
69Andras Jakob, Dilemmas of Legal Education: A Comparative Overview, 57 J. Legal Educ. 253, 260–64 (2007); see also Neil J. Dilloff, The Changing Cultures and Economics of Large Law Firm Practice and Their Impact on Legal Education, 70 Md. L. Rev. 341, 362 (2011) (discussing bridges to practice and apprenticeship models that subsidize students in practice settings).
70Paul Campos, Lawyers and Spoiled Identity, 28 Geo. J. Legal Ethics 73, 85 (2015).
71Id. at 87; Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506 (2016).
72 Robert R. Kuehn et al., Ctr. for the Study of Applied Legal Educ., The 2016–17 Survey of Applied Legal Education 25 (2017).
73Rhee, supra note 55, at 336.
74 Id . at 329–33 . For organizational skills, see Michael Kelly, A Gaping Hole in American Legal Education , 70 Md. L. Rev . 440, 447–50 (2011) . For marketing, self-promotion, and soft skills, see Marjorie M. Shultz & Sheldon Zedeck, Identification, Development and Validation of Predictors for Successful Lawyering (2008).
75 Emily A Spieler, Making Legal Education More Practical , Nat’l L.J., Feb. 22, 2010, at 16; Katherine Mangan, Law Schools Revamp Their Curricula to Teach Practical Skills , Chron. Higher Educ., Mar. 4, 2011.
76 Jonathan D. Glater, Training Law Students for Real-Life Careers , N.Y. Times , Oct. 31, 2007, at A22; Jill Schachner Chanen, Re-engineering the J.D ., ABA J ., July, 2007, at 42–44.
77David Shimer, Yale’s Most Popular Class Ever: Happiness, N.Y. Times, Jan. 26, 2018.
78 Alli Gerkman & Logan Cornett, Inst. For the Advancement of the Am. Legal Sys., Foundations for Practice: The Whole Lawyer and the Character Quotient 3 (2016).
79See Sullivan et al., supra note 53, at 145, 187; Robert Granfield, Making Elite Lawyers 38–39 (1992); Sturm & Guinier, supra note 59.
80Equal Justice Works, Financing the Future: Responses to the Rising Debt of Law Students 6 (2006) (reporting that programs at 100 schools benefitted an estimated 1778 students; the median annual award was $3400 and about half of schools cap salaries of eligible positions at below $45,000).
81Ronit Dinovitzer et al., After the JD: First Results of a National Study of Legal Careers 72 (2004).
82Compare Erica Field, Educational Debt Burden and Career Choice: Evidence from a Financial Aid Experiment at NYU Law School, 1 Am. Econ. J.: Applied Econ. 1 (2009) (finding scholarships and fellowships more effective), with Steven A. Boutcher et al., Financing Legal Education Through Student Loans: Results from a Quasi-Experiment in Tuition Remission, 67 J. Legal Educ. 755 (2018) (finding that students receiving fellowships were no less likely to assume debt).
83Sullivan, et al., supra note 53, at 187 (noting that social justice issues are treated as addenda if at all); Deborah L. Rhode, Pro Bono In Principle and In Practice 161 (2004).
84See Granfield, supra note 79, at 38–48, 88–90.
85Id.; Robert V. Stover, Making It and Breaking It: The Fate of Public Interest Commitment During Law School 3 (Howard S. Erlanger ed., 1989); see also John Bliss, Divided Selves: Professional Role Distancing Among Law Students and New Lawyers in a Period of Market Crisis, 42 L. & Soc. Inquiry 855 (2017).
86Richard L. Abel, Choosing, Nurturing, Training and Placing Public Interest Law Students, 70 Fordham L. Rev. 1563 (2002).
87ABA Accreditation Standard 302(b)(2).
88Id. Interpretation 302–10.
89For a discussion of law school pro bono programs, see Rhode, supra note 83.
90Id. at 161–62.
91Comm’n on Pro Bono and Public Service Opportunities in Law Schools, AALS, Learning to Serve: A Summary of the Findings and Recommendations of the AALS Commission on Pro Bono and Public Service Opportunities 2 (1999).
92The experience need not come in a pro bono program as opposed to a clinic, and mandatory programs do not always provide a positive experience. Research to date does not find that participants in mandatory programs are more likely to engage in pro bono work after graduation or to meet the ABA’s aspirational levels of service for practitioners. See Rhode, Pro Bono, supra note 83; Robert Granfield, The Pedagogy of Public Service: Assessing the Impact of Mandatory Pro Bono on Young Lawyers 2, 90 (2005).
93AALS Comm’n, supra note 91, at 7.
94See Rhode, supra note 83; David Luban, Faculty Pro Bono and the Question of Identity, 49 J. Legal Educ. 58 (1999).
95See Deborah L. Rhode, Leadership for Lawyers 4 (3d ed. 2020); see also Deborah l. Rhode, Lawyers as Leaders (2013); Deborah L. Rhode, Preparing Leaders: The Evolution of a Field and the Stresses of Leadership, 58 Santa Clara L. Rev. 411 (2018).
96Rhode, supra note 95, at 412; Scott A. Westfahl & David B. Wilkins, The Leadership Imperative, 69 Stan. L. Rev. 1667 (2017).
97Rhode, supra note 95, at 14–16; see also Donald J. Polden, Leading Institutional Change: Law Schools and Legal Education in a Time of Crisis, 83 Tenn. L. Rev. 949 (2016).
98Rhode, supra note 95, at 422–24.
99In contrast, Equal Justice Works provides a guide to law school public service programs that does not include a ranking.
100See Bliss, supra note 85.
101Id. at 2006.
102Id. at 2030.
103College Cost Reduction and Access Act of 2007 (CCRAA), Pub. L. No. 110–84, 121 Stat. 784 (2007).
104Philip G. Schrag, Federal Student Loan Repayment Assistance for Public Interest Lawyers and Other Employees of Governments and Nonprofit Organizations, 36 Hofstra L. Rev. 27, 27 (2007).
105Preston Cooper, Denied for Public Service Loan Forgiveness? Here’s Why, Forbes (Nov. 21, 2019), https://www.forbes.com/sites/prestoncooper2/2019/11/21/denied-for-public-service-loan-forgiveness-heres-why/#74f7fcae28c6.
106Corey Turner, Congress Promised Student Borrowers a Break, NPR (Sept. 05, 2019), https://www.npr.org/2019/09/05/754656294/congress-promised-student-borrowers-a-breakthen-ed-dept-rejected-99-of-them.
107Research suggests that risk aversion plays a significant role in career choice despite the availability of loan assistance. See Lewis A. Kornhauser & Richard L. Revesz, Legal Education and Entry into the Legal Profession: The Role of Race, Gender, and Educational Debt, 70 N.Y.U. L. Rev. 829 (1995).
108Paul Campos, Lawyers and Spoiled Identity, 28 Geo. J. Legal Ethics 73, 119 (2015).
109For discussion of the ABA’s adoption of learning outcomes and their impact, see Stephen C. Bahls, Adoption of Student Learning Outcomes: Lessons for Systemic Change in Legal Education, 67 J. Legal Educ. 376 (2018); Olympia Duhart, The ‘F’ Word: The Top Five Complaints (and Solutions) About Formative Assessment, 67 J. Legal Educ. 531 (2018).
110Handout for Neil Hamilton Presentation at Santa Clara Leadership Symposium, Mar. 23, 2018, at 2–3.
111Judith Welch Wegner, Law School Assessment in the Context of Accreditation: Critical Questions, What We Know and Don’t Know, and What We Should Do Next, 67 J. Legal Educ. 412, 432 (2018).
112Jerome M. Organ et al., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ. 116, 129–37 (2016) (finding that 22 percent of respondents reported binge drinking twice or more in prior two weeks, one-quarter had used marijuana in previous 12 months, and over 10 percent had used cocaine, ecstasy, or LSD; 18 percent reported depression during lifetime and 37 percent screened positive for anxiety).
113Id. at 148–50.
114Id. at 9.
115Id. at 12, 36–39.
116Zac Auter, Few MBA, Law Grads Say Their Degree Prepared Them Well, Gallup (Feb. 16, 2018), https://news.gallup.com/poll/227039/few-mba-law-grads-say-degree-prepared.aspx.
117D. Kelly Weisberg, Barred From the Bar: Women and Legal Education in the United States 1870–1890, in 2 Women and the Law 231, 252 (D. Kelly Weisberg ed., 1982).
118Richard Kluger, Simple Justice 261 (1975); Douglas L. Jones, The Sweatt Case and the Development of Legal Education for Negroes in Texas, 47 Tex. L. Rev. 677, 678–85 (1969); Edward J. Littlejohn & Leonard S. Rubinowitz, Black Enrollment in Law Schools: Forward to the Past?, 12 T. Marshall L.J. 415, 431 n.81 (1987).
119William C. Kidder, The Struggle for Access from Sweatt to Orulter: A History of African-American, Latino, and American Indian Law School Admissions, 1950–2000, 19 Harv. Blackletter L.J. 1 (2003).
120See Karen Morrello, The Invisible Bar: The Woman Lawyer in America, 1638 to the Present 143–47 (1986); Geraldine Segal, Blacks in the Law 212–13 (1983).
121For national population statistics, see https://www.governing.com/gov-data/census/state-minority-population-data-estimates.html. For the percentage of students of color in law schools, see https://www.enjuris.com/students/law-school-race-2018.html. For the percentage of tenured law professors, see http://www.americanbarfoundation.org/uploads/cms/documents/after_tenure_report-_final-_abf_4.1.pdf. For the percentage of deans, see Karen Sloan, More Minority Women Ascend to Law Dean Jobs, N.J. L.J., Jan. 21, 2019.
122Deborah L. Rhode, Midcourse Corrections: Women in Legal Education, 53 J. Legal Educ. 475, 477 (2003).
123Janette Barnes, Women and Entrance to the Legal Profession, 23 J. Legal Educ. 276, 283 (1970).
124Rhode, supra note 122, at 477; see also Stevens, supra note 1, at 2, 82–84; Weisberg, supra note 117, at 252.
125Rhode, supra note 122, at 478; see also Judith Richards Hope, Pinstripes & Pearls: The Women of the Harvard Law School Class of ‘64 Who Forged an Old-Girl Network and Paved the Way for Future Generations (2003).
126Rhode, supra note 122, at 478; see also Cynthia Fuchs Epstein, Women in Law 66–67 (1981).
127Sol M. Linowitz & Martin Mayer, The Betrayed Profession 6 (1994).
128ABA Accreditation Standard 211 and Interpretation 211–3 (2006).
129Am. Council on Educ. & Am. Ass’n of Univ. Professors, Does Diversity Make a Difference? (2000); Gary Orfield & Dean Whitla, Diversity and Legal Education: Student Experiences in Leading Law Schools 14–16 (1999); Richard O. Lempert et al., Michigan’s Minority Graduates in Practice: The River Runs Through Law School, 25 L. & Soc. Inquiry 395 (2000); Justin Pidot, Intuition or Proof: The Social Science Justification for the Diversity Rationale in Grutter v. Bollinger and Gratz v. Bollinger, 59 Stan. L. Rev. 761 (2006).
130The correlation between law school grades and undergraduate test scores and GPAs is statistically significant. However, its predictive power is still quite limited. Law School Admission Council, New Models to Assure Diversity Fairness and Appropriate Test Use in Law School Admissions (1999); Jess Bravin, Law School Admission Council Aims to Quash Overreliance on LSAT, Wall St.J., Mar. 29, 2001, at B1.
131David L. Chambers et al., Doing Well and Doing Good, The Careers of Minority and White Graduates of the University of Michigan Law School, 1970–1996, 42 L. Quad. Notes 60 (1999); Lani Guinier, Confirmative Action, 25 Law & Soc. Inquiry 565, 568 (2000).
132Clarence Thomas, My Grandfather’s Son 87 (2007).
133Tim Wells, Affirmative Action in Law Schools: Is it Necessary?, Wash. Law., Jan/Feb 2000, at 48 (quoting Clint Bolick); see also Charles W. Collier, Affirmative Action and the Decline of Intellectual Culture, 55 J. Legal Educ. 3 (2005).
134Jamelle Bouie, Easy AA: The Supreme Court Might Destroy Affirmative Action Because This White Woman’s Grades Weren’t Good Enough, Slate, July 2, 2015.
136Andrew Gelman et al., What Statistics Can’t Tell Us in the Fight over Affirmative Action at Harvard, Bos. Rev. (Jan. 14, 2019), http://bostonreview.net/law-justice/andrew-gelman-sharad-goel-daniel-e-ho-what-statistics-cant-tell-us-fight-over; Anemona Hartocollis, Harvard Rates Asian Americans as Less Likable, Plaintiffs Claim, N.Y. Times (June 16, 2018), https://nyti.ms/2HRc6FJ.
137Jeffrey Toobin, The Underlying Attack in the Harvard Admissions Lawsuit, New Yorker (Oct. 15, 2018), https://www.newyorker.com/news/daily-comment/the-underlying-attack-in-the-harvard-admissions-lawsuit.
138Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Findings of Fact and Conclusion of Law 127, No. 14–14176 (D. Mass. Sept. 30, 2019), ECF No. 672.
139See John Nussbaumer, Misuse of the Law School Admission Test: Racial Discrimination and the De Facto Quota System for Restricting African-American Access to the Legal Profession, 80 St. John’s L. Rev. 167, 167–70 (2006) (claiming that schools place undue importance on scores because it is convenient and improves their U.S. News rankings).
140See, e.g., Harris Poll, Public Sharply Divided on Recent Supreme Court Decisions (July 30, 2003), https://theharrispoll.com/wp-content/uploads/2017/12/Harris-Interactive-Poll-Research-Public-Sharply-Divided-on-Recent-Supreme-Court-Decisions-2003-07.pdf (finding 76 percent of Americans opposed the Court’s decision that a university may use race as one factor in deciding whom to admit; 12 percent of whites, 20 percent of Hispanics, and 60 percent of blacks supported the decision).
141Perry Bacon, Jr., How Much Diversity Do You Want From Me?, Time, July 7, 2003, at 108.
142Daniel Hirschman & Ellen Berrey, The Partial Deinstitutionalization of Affirmative Action in U.S. Higher Education, 1988 to 2014, 4 Soc. Sci. 49 (2017).
143Peter Arcidiacono et al., Legacy and Athlete Preferences at Harvard (Nat’l Bureau of Econ. Research, Working Paper No. 26316, 2019).
144 Richard Thompson Ford, Does Harvard’s Undergrad Admission Policy Discriminate? , Am. Interest (Aug. 24, 2018), https://www.the-american-interest.com/2018/08/24/does-harvards-undergrad-admission-policy-discriminate/ .
145Howard Gold, The More Pervasive Scandal in College Admissions Involves Favoring “Legacies,” MarketWatch (Mar. 13, 2019, 2:37 PM ET), https://on.mktw.net/2CipBOS.
146Karen Sloan, Can You Bribe Your Way Into Law School?, Law.com (Mar. 14, 2019), https://www.law.com/2019/03/14/can-you-bribe-your-way-into-law-school/.
147Richard Sander, Class in American Legal Education, 88 Denv. U. L. Rev. 631, 637 (2011).
148Marjorie M. Shultz & Sheldon Zedeck, Predicting Lawyer Effectiveness: A New Assessment for Use in Law School Admission Decisions, 36 L. & Soc. Inquiry 620 (2011).
149See Yale Law Women, Yale Law School Faculty and Students Speak Up About Gender, Ten Years Later (2012) (finding that men were responsible for 57 percent of class participation and also finding a perception that women may be penalized socially for participating more than average); Women’s Experience Raises Concerns, Harv. L. Rec., Feb. 26, 2004, at 1 (noting that male students were fifty percent more likely to speak voluntarily at least once during a class meeting than female students, and that female students constituted a significantly smaller proportion of “frequent talkers”); Minna Kotkin, Of Authorship and Authority: An Empirical Study of Gender Disparity and Prestige in the “Top Ten” Law Reviews, 31 Women’s Rts. L. Rep. 385 (2010) (finding women wrote fewer articles than men and that the disparity was greatest in the most prestigious journals).
150Felice Batlan et al., Not Our Mother’s Law School? A Third Wave Feminist Study of Women’s Experiences in Law School, 39 U. Balt. L. Forum 124, 131 (2009); Elizabeth Mertz, Inside the Law School Classroom: Toward a New Legal Realist Pedagogy, 60 Vand. L. Rev. 509 (2007); Adam Neufield, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 J. Gender, Soc. Pol’y & L. 511, 516–17, 530–39 (2005).
151For example, in 2019, women were the editors-in-chief at the top 16 ranked law journals. Ann E. Marimow, For the First Time, Flagship Law Journals at Top U.S. Law Schools Are All Led By Women, Wash. Post, Feb. 7, 2020.
152For a review of the research, see Am. Bar Ass’n Comm’n on Women in the Profession, Unfinished Agenda: Women in the Legal Profession 30–32 (2001).
153Mertz, supra note 150, at 510 (finding racial differences as high as 283 percent in some classes); Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me a River: The Limits of ‘A Systematic Analysis of Affirmative Action in American Law Schools,’ 7 Afr.-Am. L. & Pol’y Rep. 1 (2005). As an Asian-American woman in one study explained, she would not feel comfortable bringing up an issue of race that she thought deserved class attention because she did not “want to look like the minority bitch by complaining.” Wendy Leo Moore, Reproducing Racism: White Space, Elite Law Schools, and Racial Inequality 127 (2008).
154Celestial S. D. Cassman & Lisa R. Pruitt, Towards a Kinder, Gentler Law Schools?: Race, Ethnicity, Gender, and Legal Education, 38 U.C. Davis L. Rev. 1209, 1248 (2005) (describing survey finding that Asian-American students reported the lowest level of class participation of any group surveyed).
155Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia (2019); Ass’n of American Law Schools, Legal Education at a Glance: Year 2018, https://www.aals.org/wp-content/uploads/2019/02/1901LegalEducationataGlance.pdf.
156Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 Seton Hall L. Rev. 629, 653 (2019).
157Am. Bar Ass’n Presidential Initiative Comm’n on Diversity, Diversity in the Legal Profession: Next Steps (2010); Robert S. Chang & Adrienne D. Davis, Making Up is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom, 33 Harv. J.L. & Gender 1 (2010) (summarizing research).
158Women’s Experience Continues to Raise Concerns, Harv. L. Rec., Feb. 26, 2004, at 1.
159John O. McGinnis, At Law School, Unstrict Scrutiny, Wall St. J., July 27, 2005, at D10 (discussing Dan Subotnik, Toxic Diversity (2005)).
160Mindie Lazarus-Black & Julie L. Globokar, Foreign Attorneys in U.S. LL.M. Programs: Who’s In, Who’s Out, and Why They Are, 22 Ind. J. Global Legal Stud. 3 (2015).
161Carole Silver, Winners and Losers in the Globalization of Legal Services: Situating the Market for Foreign Lawyers, 67 Va. J. Int’l L. 897, 906 (2005).
162Mark Joseph Stern, Justice Alito Positions Himself as Anti-Gay Culture Warrior, Slate (Sept. 21, 2015), https://slate.com/human-interest/2015/09/alito-is-an-anti-gay-culture-warrior-looking-beyond-obergefell.html.
163Bob Van Voris, Harvard Law Review Suit Opens New Front in Admissions-Bias Fight, Bloomberg (Oct. 8, 2018), https://www.bloomberg.com/news/articles/2018-10-08/harvard-law-review-suit-opens-new-front-in-admissions-bias-fight.
164Chris Villani, Harvard, NYU Law Reviews Biased against White Men: Suit, Law360 (Oct. 9, 2018), https://www.law360.com/articles/1090202/harvard-nyu-law-reviews-biased-against-white-men-suit.
These are challenging times for the American legal profession.1 We conclude this casebook with an overview of challenges facing lawyers and strategies for finding personal fulfillment in professional practice.
A.Professional Satisfaction and Well-Being
How satisfied are lawyers? Underlying that seemingly simple question are complicated issues of how to define and measure satisfaction. The conventional approach is simply to ask lawyers for their assessments. A meta-analysis of surveys over the last quarter century finds that roughly 80 percent of lawyers indicate that they are very satisfied, somewhat satisfied, or satisfied with their jobs.2 These figures are similar to the third and most recent report from the American Bar Foundation’s After the JD study, which found that about three quarters of lawyers are moderately or extremely satisfied with their decision to become lawyers.3 A National Opinion Research Center comparative study of occupations finds that about half of lawyers (52 percent) are very satisfied, a figure slightly higher than Americans generally (47 percent).4
That leaves room for improvement. Law does not rank among the top twelve professions for satisfaction.5 Lawyers rate their jobs about the same as accountants, civil engineers, and car salesman, and significantly below dentists, engineers, physicians, police officers, and real estate agents.6 In one ABA Journal survey, although four-fifths of legal practitioners are proud to be a lawyer, only about half that number would recommend their career to a young person.7 In other surveys, 60 to 70 percent of attorneys would choose a different career.8 One in-depth survey of lawyers who said they were satisfied with their work found substantial misgivings about some aspects of their jobs, including its 1038social value and work life balance; half would not choose to attend law school again.9
Satisfaction rates vary across practice areas. In general, lawyers in public sector practice are happier than those in private practice, and those in large firms are the least satisfied.10 A recent study of Texas lawyers found that dissatisfaction correlated with lower incomes, private practice, and holding non-partner status.11 In an American Bar Foundation study tracking the careers of young lawyers, those most dissatisfied were graduates of elite law schools working in large firms. Only a quarter of those attorneys were extremely satisfied with their decision to become a lawyer, and 60 percent said that they expected to leave their jobs within the next two years. Graduates from lower-ranked schools reported higher satisfaction in all practice settings. Forty-three percent were extremely happy with their choice of career and only 40 percent planned to change jobs in two years.12 Researchers explained the variation in terms of expectations. Graduates from higher ranked schools had a greater sense of entitlement and so were disproportionately disaffected when their jobs didn’t measure up.
Race, gender, ethnicity, and age also play a role. Overall, women and minorities are not less satisfied with their career decisions, although they are more dissatisfied with some aspects of practice.13 In the American Bar Foundation study of recent graduates, African Americans were the most satisfied with their decision to become lawyers and with the substance of their work, but the least satisfied with the social conditions and opportunities for professional development and influence. Asian Americans were least satisfied with substance, but shared white attorneys’ high satisfaction with other working conditions.14 Women were more satisfied than men with the substance of what they did and less satisfied with its context and opportunities; they were also more likely to leave their position, particularly if it was in a large firm.15 In some recent American Lawyer surveys of midlevel associates, women were significantly less satisfied than men on virtually all dimensions of practice and were more likely to leave to achieve a better work-life balance.16 In other studies, women of color were the least satisfied of all 1039groups with almost all aspects of their workplaces.17 In general, experienced lawyers are more satisfied than younger attorneys, in part because they eventually find jobs that most closely match their preferences, and those most dissatisfied drop out of the profession.18
Yet these self-reported satisfaction rates are an incomplete measure of lawyer well-being. A growing body of research in positive psychology points out the inadequacy. Peoples’ response to questions regarding satisfaction largely reflect respondents’ mood (i.e., positive or negative emotions) at the time the survey is conducted, and surveys tend to understate other factors critical to overall life satisfaction, including a sense of meaning and purpose.19 Just as self-reports are not always accurate measures of physical health, they are not always accurate measures of psychological well-being.20 And that is particularly true of lawyers, who, as Chapter 2 noted, have exceptionally high rates of depression, anxiety, and substance abuse. These problems impose substantial personal and professional costs, which call for both individual and structural responses.
B.Sources of Professional Satisfaction and Well-Being
There are rich psychological, philosophical, and religious literatures on what is variously described as authentic happiness, well-being, flourishing, or a life well lived. This is not the place for a comprehensive overview, but certain common themes are helpful in identifying what makes lawyers likely to thrive in their professional lives. The research generally suggests a need for a combination of pleasure and meaning that provides both present and future benefits.21 One of the founders of positive psychology, Martin Seligman, argues that our goal should be flourishing, which he describes as having five elements; positive emotion, engagement, meaning, positive relationships, and accomplishment.22 Other research on highly successful individuals finds that they have a balance of similar qualities: positive emotions (feelings of pleasure or contentment); achievement (accomplishments that compare favorably against similar goals that others have strived for); significance (the sense 1040of impact); and legacy (ways to help others find future success).23 What constitutes meaning varies by individuals but most find significance and value from goals and connections with others that transcend self-interest.24 Individuals involved in purposeful activities that hold meaning show more signs of well-being than those who lack such pursuits.25
Peoples’ satisfaction and capacity to flourish reflects a combination of genetic predispositions, external circumstances including working conditions, and personal characteristics and practices. Experts generally believe that people have a genetically determined baseline for happiness, and that at least half of the variation in satisfaction reflects this physiological baseline.26 It typically takes concerted effort or significant changes in circumstances, such as health, finances, and personal relationships, to move people outside of this range.27 But people can shape their psychological destinies, and they can also seek workplace conditions and public service opportunities that maximize satisfaction and meaning.28
In general, individuals benefit from benefiting others. Volunteer service is correlated not only with greater satisfaction but also with greater physical and mental health and self-esteem.29 The greatest source of disappointment with legal practice, according to ABA studies, is the “lack of connection to the social good.”30 Only 16 percent of lawyers report that their ability to contribute to the social good has matched their 1041expectations when they began practicing law.31 One obvious response to this disaffection is pro bono work.
Lawrence Krieger and Kennon Sheldon’s survey of some 7000 lawyers also provides further information about the factors associated with professional satisfaction. Factors most strongly correlated with well-being included autonomy, competence, and intrinsic rather than extrinsic pursuits. Attorneys who chose work because of interest and meaning were more satisfied than those motivated by extrinsic factors such as money and prestige.32 Lawyers in “public service” jobs—such as in prosecutor and public defender offices, government agencies, legal aid groups, and nonprofit organization—had higher satisfaction than lawyers in more prestigious jobs, such as large law firms.33 Making partner did not produce greater satisfaction, but participation in pro bono work did.34 Although other research suggests that being a partner is correlated with somewhat higher satisfaction than holding other statuses, the increase is much more modest than some lawyers anticipate.35
Part of the reason is that partnership increasingly requires the kind of long hours and constant accessibility that are a major cause of dissatisfaction and attrition.36 That is particularly true among women, who bear a disproportionate share of family responsibilities. Only a fifth of mothers with full-time schedules are satisfied with the amount of time that they have for childcare.37 Women who temporarily opt out of the labor market to address that problem often fail to find a satisfactory position when they are ready to return.38 Most surveyed lawyers report that they do not have sufficient time for themselves and their families.39 In Krieger and Sheldon’s survey of some 7000 practicing attorneys, billable hours were the strongest negative predictor of well-being.40 Half of surveyed lawyers would be willing to make less money in order to work fewer hours, and another quarter might be willing if it did not result in less respect.41
1042So too, some lawyers may overestimate the well-being that will flow from increased income or achieving partnership or a promotion. This is readily understandable given current cultural norms. When asked what single thing would be most likely to make them happier, a majority of Americans answer: “more money.”42 In materialist societies such as the United States, income is valued not only for what it can purchase, but also for what it signifies. Wealth is a key measure of achievement and self-esteem and a marker of social position. For many individuals, self-worth is linked to net worth.43 Yet these extrinsic achievements often fail to fully satisfy because they do not meet basic psychological needs, tend to foster excessive social comparison, and can crowd out other intrinsic goals and activities that are likely to promote well-being.44
The bump that comes from greater money and status is often less than anticipated, because it is moderated by contextual factors and adaptive mechanisms. Desires, expectations, and standards of comparison tend to increase as rapidly as they are satisfied. People become trapped on a “hedonic treadmill”: the more they have the more they need to have.45 The novelty of new purchases or circumstances quickly wears thin, and the transitory pleasure that they bring is less critical in promoting well-being than other factors, such as individuals’ relationship with families, friends, and communities, and their sense of contributing to larger societal ends.46 Moreover, satisfaction is most affected by relative not absolute income. Pay is a “positional good”; individuals’ satisfaction with their pay depends on their position relative to others.47 And increases in wealth are generally offset by changes in reference groups.48 That helps explain why, at lawyers’ income levels, differences in compensation bear little relationship to differences in 1043satisfaction.49 There is no relationship between compensation and fulfillment across different fields of legal practice. As noted earlier, discontent is greatest among well-paid large-firm practitioners and least pronounced among relatively low-earning public sector employees.50
This is not to minimize the substantial economic pressures facing many lawyers, particularly recent graduates, and the role that student debt and family financial needs will necessarily play in constraining professional choices. But it is to suggest that in the long run, the lawyers likely to find greatest professional satisfaction will be those who look for work that they find intellectually engaging and workplaces that provide opportunities for growth and time for personal relationships, families, and public service. People who see their work as a calling, with intrinsic meaning, are likely to find the most fulfillment.51
In an influential essay, “The Importance of What We Care About,” philosopher Harry Frankfurt argues that individuals are most fulfilled when they engage in work that they find meaningful and reflect at the deepest level about what meets this definition.52 It is, in essence, important to remind ourselves what we care most about, and to refuse to settle, at least in the long term, for workplaces that fall short. Although not all the downsides of legal practice are easily avoided, lawyers could do much more, both individually and collectively, to reduce the gap between expectations and experience in their professional lives. What most needs to change is the belief that change is impossible.
At the individual level, lawyers need to be more proactive in finding work that lies at the “intersection of their values, pleasures, and strengths.”53 That, in turn, will require individuals to become more informed and self-reflective in their career choices. Lawyers, bar associations, and law schools should demand more information about all legal workplaces, including how their formal policies function in actual practice. For example, how does part-time status or substantial pro bono involvement affect promotion and compensation decisions? How much 1044control do lawyers exercise over their schedules and over the kinds of work available?
Once employed, practitioners also need to press for such control. In one study on career advancement, the most effective strategy was being proactive; individuals benefited from seizing every opportunity and leaving a position when a more promising opportunity became available.54 So too, professionals committed to improving their current situation often find strength in numbers. Organizing colleagues both within and across workplaces can significantly improve diversity and work/family policies.
Legal employers must do more to address sources of discontent and to evaluate the adequacy of their responses. A commitment to quality of life needs to be reflected in workplace priorities, policies, and reward structures. That, in turn, will require systematic evaluation of lawyers’ well-being, and of practices that affect it. Employers should conduct anonymous surveys that ask for feedback on how satisfied lawyers are with various aspects of practice and what changes they would most like to see. Decision-makers must track whether women and lawyers of color are advancing in numbers equal to white male counterparts, and whether all groups feel equally well supported in their professional development. Do lawyers working reduced hours find that their schedules are respected, that their pay and benefits are proportionate to their performance, and that they retain opportunities for promotion and desirable assignments? How do lawyers assess their training and mentoring? Do participants in formal mentoring programs feel that their assigned mentor has sufficient time, interest, incentives, and knowledge to provide the necessary support? Do lawyers get regular, constructive, and candid feedback on their performance? Could lawyers be given more control over their schedules, assignments, and working environments? Too many employers now lack answers to these questions and rely on formal policies that inadequately serve their intended beneficiaries.
Too many legal organizations are also insufficiently supportive of pro bono work. Employers must make a visible commitment to public service that is reflected in resource allocation and reward structures. At a minimum, workplaces should provide full credit for pro bono work toward billable hour requirements, value pro bono work in promotion and compensation decisions, ensure adequate training and supervision, and develop an effective system for matching participants with work that they find meaningful.55
Reforms are also necessary in the structure of practice. One promising initiative involves law firm tracks that allow different hours 1045and compensation tradeoffs without second-class status.56 Another is for organizations to match attorneys with projects that fit their substantive and scheduling preferences; often, much of this work can be done from home or client offices to maximize flexibility and minimize overhead.57 Alternative fee arrangements that reduce reliance on hourly billing can also help reward efficiency and reduce the financial pressures for overwork.58
Lawyers can take pride in working at the forefront of social change and engaging in efforts that contribute to a more just society. We need now to turn more of our efforts toward our own profession, and to promote forms of practice that fulfill our deepest needs and aspirations.
1 In one ABA study, 69 percent of lawyers saw declining civility and 90 percent of lawyers in large firms found competition between firms increasing. Stephanie Francis Ward, Pulse of the Legal Profession , ABA J., Oct. 2007, at 31–32.
2 Jerome M. Organ, What Do We Know About the Satisfaction/Dissatisfaction of Lawyers? A Meta-Analysis of Research on Lawyer Satisfaction and Well-Being , 8 U. St. Thomas L.J. 225, 262 (2011) .
3Ronit Dinovitzer, After the JD III: Third Results from a Long-Term Study of Attorneys’ Careers 17 (2014).
4 Nat’l Opinion Res. Ctr., Job Satisfaction in the United States (2007).
5 Alan B. Krueger, Job Satisfaction is Not Just a Matter of Dollars , N.Y. Times , Dec. 8, 2005, at C3.
6 On the Job , Time , Oct. 30, 2006.
7 Ward, supra note 1, at 34.
8 For surveys, see Nancy Levit & Douglas O. Linder, The Happy Lawyer: Making a Good Life in the Law 12 (2010); Becky Beaupre Gillespie & Hollee Schwartz Temple, Hunting Happy , ABA J., Feb. 2011, at 41.
9 David L. Chambers, Overstating the Satisfaction of Lawyers , 39 Law & Soc. Inquiry 1, 7 (2013) .
10 Organ, supra note 2, at 265.
11Milan Markovic & Gabriele Plickert, Attorneys’ Career Dissatisfaction in the New Normal, 25 Int’l J. Legal Prof. 147 (2018).
12 Ronit Dinovitzer & Bryant Garth, After the JD: Lawyer Satisfaction in the Process of Structuring Legal Careers , 41 Law & Soc’y Rev . 1 (2007) .
13 Organ, supra note 2, at 265 – 66; Markovic & Plickert, supra note 11.
14 Ronit Dinovitzer et al. , After the J.D: First Results of a National Study of Legal Careers 64 (2004).
15 Id. at 58 ; Am. Bar Ass’n Comm’n on Women in the Profession: A Current Glance at Women in the Law 2 (2006). For additional findings, see studies cited in Theresa M. Beiner, Not All Lawyers are Equal: Difficulties that Plague Women and Women of Color , 58 Syracuse L. Rev. 317, 321 n.21 (2008) .
16 Vivia Chen, He Said, She Said , Am. Law. Sept. 2013, at 44.
17 Beiner, supra note 15, at 329; see also D. M. Osborne, The Woman Question , Am. Law ., Nov. 2007, at 106 (noting that, in a recent survey, women of color gave firms lower ratings in quality of work, satisfaction with work, and professional growth).
18 Organ, supra note 2, at 264.
19Martin E.P. Seligman, Flourish: A Visionary New Understanding of Happiness and Well-Being 13 (2011).
20José L. Duarte, Beyond Life Satisfaction: A Scientific Approach to Well-Being Gives Us Much More to Measure, in The Wiley Blackwell Handbook of Positive Psychological Interventions 433, 435–36 (Acacia C. Parks & Stephen M. Schueller, eds., 2014).
21 Tal Ben-Shahar, Happier: Learn the Secrets to Daily Joy and Lasting Fulfillment 33 (2007).
22Seligman, supra note 19, at 16.
23 Laura Nash & Howard Stevenson, Success That Lasts , Harv. Bus. Rev. , Feb. 2004, at 104.
24Jeffrey D. Green et al., Heroism and the Pursuit of Meaning, in Handbook of Heroism and Heroic Leadership 507, 509 (Scott T. Allison et al., eds., 2017); Joo Yeon Shin & Michael F. Steger, Promoting Meaning and Purpose in Life, in The Wiley Blackwell Handbook, supra note 20, at 90–110.
25 Kendall Cotton Bronk, Purpose in Life: A Critical Component of Optimal Youth Development 131 (2014).
26 Levit & Linder , supra note 8, at 42; Kennon M. Sheldon & Sonja Lyubomirsky, Achieving Sustainable Gains in Happiness: Change Your Actions, Not Your Circumstances , 7 J. Happiness Stud. 55, 56 (2006); Edward Diener et al., Subjective Well-Being: Three Decades of Progress , 125 Psychol. Bull. 276 (1999).
27 Ed Diener & Robert Biswas Diener, Happiness: Unlocking the Mysteries of Psychological Wealth 162 (2008); Sonja Lyubomirsky et al., Pursuing Happiness: The Architecture of Sustainable Change , 9 Rev. Gen. Psychol. 111 (2005) .
28 For self-direction, see Sheldon & Lyubomirsky, supra note 26, at 55, 57–58, 60. For job conditions that enhance self-esteem, competence, and relationships, see William C. Compton, Introduction to Positive Psychology 48–49, 53–54 (2004); Levit & Linder , supra note 8, at 44; Kennon M. Sheldon, What Is Satisfying About Satisfying Events? Testing 10 Candidate Psychological Needs , 80 J. Personality & Soc. Psych. 325, 325–27 (2001).
29 See Alan Luks with Peggy Payne, The Healing Power of Doing Good 17 – 18, 45–54, 60 (2d ed. 2001); John Wilson & Marc Musick, The Effects of Volunteering , 62 Law & Contemp. Probs. 141, 142–43 (1999) .
30 Am. Bar Ass’n Young Lawyers Div., Career Satisfaction Survey 20 (2000); Am. Bar Ass’n Young Lawyers Div., Career Satisfaction Survey 11 (1995).
31 2000 Career Satisfaction Survey , supra note 30, at 17.
32 Lawrence S. Krieger with Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success , 83 Geo. Wash. L. Rev . 554 579–80 (2015) .
33 Id. at 591–92 .
34 Id. at 598, 600 .
35Markovic & Plickert, supra note 11.
36 Deborah L. Rhode, Women and Leadership 83–85 (2017); Joan Williams, Unbending Gender 71 – 73 (2000).
37 Jean E. Wallace, Juggling It All: Exploring Lawyers’ Work, Home, and Family Demands and Coping Strategies 15 (2002).
38 Sylvia Ann Hewlett & Carolyn Buck Luce, Off Ramps and On Ramps: Keeping Talented Women on the Road to Success , Harv. Bus. Rev ., Mar. 2005, at 43, 45.
39 2000 Career Satisfaction Survey , supra note 30, at 48.
40 Krieger with Sheldon, supra note 32, at 619.
41 Susan Saab Fortney, Soul for Sale: An Empirical Study of Associate Satisfaction, Law Firm Culture, and the Effects of Billable Hour Requirements , 69 UMKC L. Rev . 239, 261 (2000) .
42 Sonja Lyubomirsky, The How of Happiness; A New Approach to Getting the Life You Want 44 (2007); Eric Weiner, The Geography of Bliss 310 (2008) .
43 For a discussion of the need to impress, see Richard Conniff, A Natural History of the Rich: A Field Guide 145 (2002).
44 Tim Kasser, The High Price of Materialism (2002); Helga Dittmar et al., The Relationship Between Materialism and Personal Well-Being: A Meta-analysis , 107 J. Personality & Soc. Psychol. 879 (104).
45 Edward Diener et al., Beyond the Hedonic Treadmill: Revising the Adaptation Theory of Well Being , 61 Am. Psych. 305 (2006); Edward Diener & Robert Biswas-Diener, Will Money Increase Subjective Well Being?: A Literature Review and Guide to Needed Research , 57 Soc. Ind. Res. 119 (2002) ; Sheldon & Lyubomirsky, supra note 26, at 55, 60.
46 Jonathan Haidt, The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom 83 (2006) (noting how adaptation to improved material circumstances erodes their value); Martin Seligman, Authentic Happiness: Using the New Positive Psychology to Realize Your Potential for Lasting Fulfillment xiii (2002) (arguing that pleasure is less related to enduring happiness than engagement in relationships and a sense of meaning, which involves using personal capacities to make a broader societal contribution).
47 Robert H. Frank, How Not to Buy Happiness , 133 Daedalus 69, 69–79 (2004) .
48 Daniel Kahneman et al., Would You Be Happier if You Were Richer? A Focusing Illusion , 312 Sci . 1908 (2006) ; William C. Compton , Introduction to Positive Psychology 62 (2004); David G. Meyers , Pursuit of Happiness 39 (1993).
49 Robert H. Frank, Luxury Fever: Weighing the Cost of Excess 72, 112–13 (1999); Levit & Linder , supra note 8, at 38–39; Juliet B. Schor, The Overspent American 7 (1998); Matthew Herper, Money Won’t Buy You Happiness , Forbes , Sept. 21, 2004.
50 Dinovitzer et al ., supra note 14, at 8, 10; Kenneth G. Dau-Schmidt & Kaushik Mukhopadhaya, The Fruits of Our Labors: An Empirical Study of the Distribution of Income and Job Satisfaction Across the Legal Profession , 49 J. Legal Educ. 342, 346–47 (1999) ; Marc Galanter, Old and in the Way: The Coming Demographic Transformation of the Legal Profession and Its Implications for the Provision of Legal Services , 1999 Wis. L. Rev. 1081, 1105 – 06 .
51Amy Wrzesniewski et al., Interpersonal Sensemaking and the Meaning of Work, 25 Res. in Org. Behavior 93 (2003).
52 Harry Frankfurt, The Importance of What We Care About , 53 Synthesis 257 (1982) .
53 Levit & Linder , supra note 8, at 105. For similar suggestions, see generally Peter H. Huang & Rick Swedloff, Authentic Happiness and Meaning at Law Firms , 58 Syracuse L. Rev . 335 (2008) ; Martin E.P. Seligman et al., Positive Psychology Programs: Empirical Validation of Interventions , 60 Am. Psych . 410 (2005) .
54 Kimberly A. Eddleston et al., Toward Modeling the Predictors of Managerial Career Success: Does Gender Matter ? , 19 Managerial Psychol . 360 (2004) .
55 Deborah L. Rhode, Pro Bono in Principle and Practice 138–40 (2005).
56 For examples of innovative arrangements, see Lisa Belkin, Who’s Cuddly Now? Law Firms , N.Y. Times , Jan. 24, 2008, at G1, G8; Natasha Sarkisian, Who Says Being a Lawyer Has to Suck? , S.F. Mag. , Oct. 2007.
57 Leigh Jones, The Rise of the New Model Firm , Nat’l L.J ., May 21, 2007.
58 Am. Bar Ass’n Comm’n on Billable Hours, Report to the House of Delegates (2002).
References are to Pages
—————
This book is dedicated to the memory of
H. Stanley Feldman
1953–2014
Helen Luban
1912–1988
Jack Luban
1911–2001
Frederick R. Rhode
1918–1980
Hertha H. Rhode
1920–2007
Carmelo A. Vinci
1912–2011
Casebooks are by nature a labor-intensive enterprise and our new edition would have been impossible without the essential support of our respective institutions over the last four years. We also acknowledge the following authors, journals, and publishers for granting permission to reprint material:
Abel. ‘‘Legal Services,’’ Handbook of Applied Sociology. Reprinted by permission of Greenwood Publishing Group, Inc., Westport, CT, from Handbook of Applied Sociology: Frontiers of Contemporary Research, edited by M.E. Olsen and M. Micklin. Copyright by Praeger Publishers and published in 1981 by Greenwood Press, Praeger Publishers.
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The principal cases are in bold type.